§22-1-1.  Legislative findings; legislative statement of policy and purpose.

(a) The Legislature finds that:

(1) Restoring and protecting the environment is fundamental to the health and welfare of individual citizens, and our government has a duty to provide and maintain a healthful environment for our citizens.

(2) The state has the primary responsibility for protecting the environment; other governmental entities, public and private organizations and our citizens have the primary responsibility of supporting the state in its role as protector of the environment.

(3) Governmental decisions on matters which relate to the use, enhancement, preservation, protection and conservation of the environment should be made after public participation and public hearings.

(4) Efficiency in the wise use, enhancement, preservation, protection and conservation of the environment can best be accomplished by an integrated and interdisciplinary approach in decision making and would benefit from the coordination, consolidation and integration of state programs and agencies which are significantly concerned with the use, enhancement, preservation, protection and conservation of the environment.

(5) Those functions of government which regulate the environment should be consolidated in order to accomplish the purposes set forth in this article, to carry out the environmental functions of government in the most efficient and cost effective manner, to protect human health and safety and, to the greatest degree practicable, to prevent injury to plant, animal and aquatic life, improve and maintain the quality of life of our citizens, and promote economic development consistent with environmental goals and standards.

(b) The Legislature declares that the establishment of a Department of Environmental Protection is in the public interest and will promote the general welfare of the State of West Virginia without sacrificing social and economic development. It is the policy of the State of West Virginia, in cooperation with other governmental agencies, public and private organizations, and the citizens of this state, to use all practicable means and measures to prevent or eliminate harm to the environment and biosphere, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations. The purposes of this chapter are:

(1) To strengthen the commitment of this state to restore, maintain and protect the environment;

(2) To consolidate environmental regulatory programs in a single state agency;

(3) To provide a comprehensive program for the conservation, protection, exploration, development, enjoyment and use of the natural resources of the State of West Virginia;

(4) To supplement and complement the efforts of the state by coordinating state programs with the efforts of other governmental entities, public and private organizations and the general public; to improve the quality of the environment, the public health and public enjoyment of the environment, and the propagation and protection of animal, aquatic and plant life, in a manner consistent with the benefits to be derived from strong agricultural, manufacturing, tourism and energy-producing industries;

(5) Insofar as federal environmental programs require state participation, to endeavor to obtain and continue state primacy in the administration of such federally-mandated environmental programs, and to endeavor to maximize federal funds which may be available to accomplish the purposes of the state and federal environmental programs and to cooperate with appropriate federal agencies to meet environmental goals;

(6) To encourage the increased involvement of all citizens in the development and execution of state environmental programs;

(7) To promote improvements in the quality of the environment through research, evaluation and sharing of information;

(8) To improve the management and effectiveness of state environmental protection programs;

(9) To increase the accountability of state environmental protection programs to the Governor, the Legislature and the public generally; and

(10) To promote pollution prevention by encouraging reduction or elimination of pollutants at the source through process modification, material substitutions, in-process recycling, reduction of raw material use or other source reduction opportunities.

§22-1-2. Definitions.

As used in this chapter, unless otherwise provided or indicated by the context:

(1) "Chief" means the Secretary of the Department of Environmental Protection, or his or her designee, who is also the chief executive officer of an office, division or section within the department.

(2) “Department” means the Department of Environmental Protection.

(3) “Director” means the Secretary of the Department of Environmental Protection or his or her designee.

(4) “Division” means the Department of Environmental Protection.

(5) “Function” means any duty, obligation, power, authority, responsibility, right, privilege, activity or program.

(6) “Office” means any office, division, board, agency, unit, organizational entity or component thereof within the Department of Environmental Protection.

(7) “Secretary” means the Secretary of the Department of Environmental Protection.

§22-1-3. Rulemaking generally; relationship to federal programs.

(a) The director has the power and authority to propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to carry out and implement the provisions of this chapter and to carry out and implement any other provision of law relating to offices or functions of the division.

(b) The requirements and limitations set forth in this section apply to any rule-making authority granted pursuant to this chapter or chapters twenty-two-b and twenty-two-c of this code.

(c) Prior to the proposal of any new rule, the director shall consult with the Division of Environmental Protection advisory council and after such consultation, the director may determine that such a rule should be the same in substance as a counterpart federal regulation. If the director determines that the rule should be the same in substance as a counterpart regulation, then to the greatest degree practicable, such proposed rule shall incorporate by reference the counterpart federal regulation. The director shall file, contemporaneously with the proposed rule, a statement setting forth whether the rule is the same in substance as a counterpart federal regulation. If the director determines that the rule should not be the same in substance as a counterpart federal regulation, then the director shall file contemporaneously with the proposed rule, a statement setting forth the differences between the proposed rule and the counterpart federal regulation. In addition, the director shall file a statement setting forth the results of the consultation with the advisory council.

(d) Whenever any existing rule is modified, amended or replaced, the provisions of subsection (c) of this section apply to the proposal of any such modification, amendment or replacement rule.

(e) Notwithstanding the provisions of article three, chapter twenty-nine-a of this code, at least one public hearing shall be held by the division in conjunction with each rule making prior to the expiration of the public comment period for the proposed rules.

§22-1-3a. Rules -- New or amended environmental provisions.

Except for legislative rules promulgated for the purpose of implementing the provisions of section four, article twelve, section six, article seventeen, and section six, article eighteen, all of this chapter, and notwithstanding the provisions of section four, article five of this chapter, legislative rules promulgated by the director which become effective on or after July 1, 1994, may include new or amended environmental provisions which are more stringent than the counterpart federal rule or program to the extent that the director first provides specific written reasons which demonstrate that such provisions are reasonably necessary to protect, preserve or enhance the quality of West Virginia's environment or human health or safety, taking into consideration the scientific evidence, specific environmental characteristics of West Virginia or an area thereof, or stated legislative findings, policies or purposes relied upon by the director in making such determination. In the case of specific rules which have a technical basis, the director shall also provide the specific technical basis upon which the director has relied.

In the event that legislative rules promulgated by the director which become effective on or after July 1, 1994, include new or amended environmental provisions which are less stringent than a counterpart federal rule which recommends, but does not require, a particular standard or any federally recommended environmental standard whether or not there be a counterpart federal rule, the division shall first provide specific written reasons which demonstrate that such provisions are not reasonably necessary to protect, preserve or enhance the quality of West Virginia's environment or human health or safety, taking into consideration the scientific evidence, specific environmental characteristic of West Virginia or an area thereof, or stated legislative findings, policies or purposes relied upon by the director in making such determination. In the case of specific rules which have a technical basis, the director shall also provide the specific technical basis upon which the director has relied.

In the absence of a federal rule, the adoption of a state rule shall not be construed to be more stringent than a federal rule, unless the absence of a federal rule is the result of a specific federal exemption.

§22-1-4.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§22-1-5. Jurisdiction vested in division.

Except as may be otherwise provided in this code, the division is hereby designated as the lead regulatory agency for this state for all purposes of federal legislation relating to all activities regulated under this chapter.

§22-1-6. Secretary of the Department of Environmental Protection.

(a) The secretary is the chief executive officer of the department. Subject to §22-1-7 of this code and other provisions of law, the secretary shall organize the department into such offices, sections, agencies, and other units of activity as may be found by the secretary to be desirable for the orderly, efficient, and economical administration of the department, and for the accomplishment of its objects and purposes. The secretary may appoint a deputy secretary, chief of staff, assistants, hearing officers, clerks, stenographers and other officers, technical personnel, and employees needed for the operation of the department and may prescribe their powers and duties and fix their compensation within amounts appropriated.

(b) The secretary has the power to and may designate supervisory officers or other officers or employees of the department to substitute for him or her on any board or commission established under this code or to sit in his or her place in any hearings, appeals, meetings, or other activities with such substitute having the same powers, duties, authority and responsibility as the secretary. The secretary has the power to delegate, as he or she considers appropriate, to supervisory officers or other officers or employees of the department his or her powers, duties, authority, and responsibility relating to issuing permits, hiring and training inspectors, and other employees of the department, conducting hearings and appeals and such other duties and functions set forth in this chapter or elsewhere in this code.

(c) The secretary has responsibility for the conduct of the intergovernmental relations of the department, including assuring:

(1) That the department carries out its functions in a manner which supplements and complements the environmental policies, programs, and procedures of the federal government, other state governments and other instrumentalities of this state; and

(2) That appropriate officers and employees of the department consult with individuals responsible for making policy relating to environmental issues in the federal government, other state governments, and other instrumentalities of this state concerning differences over environmental policies, programs, and procedures and concerning the impact of statutory law and rules upon the environment of this state.

(d) In addition to other powers, duties, and responsibilities granted and assigned to the secretary by this chapter, the secretary is authorized and empowered to:

(1) Sign and execute in the name of the state by the Department of Environmental Protection any contract or agreement with the federal government or its departments or agencies, subdivisions of the state, corporations, associations, partnerships, or individuals: Provided, That the powers granted to the secretary to enter into agreements or contracts and to make expenditures and obligations of public funds under this subdivision may not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors, or board members of the various departments, agencies, or boards that comprise and are incorporated into each secretary’s department pursuant to the provisions of chapter 5F of this code;

(2) Conduct research in improved environmental protection methods and disseminate information to the citizens of this state;

(3) Enter private lands to make surveys and inspections for environmental protection purposes; to investigate for violations of statutes or rules which the department is charged with enforcing; to serve and execute warrants and processes; to make arrests; issue orders, which for the purposes of this chapter include consent agreements; and to otherwise enforce the statutes or rules which the department is charged with enforcing;

(4) Require any applicant or holder of a permit to install, establish, modify, operate, or close a solid waste facility to furnish the fingerprints of the applicant or permittee; any officer, director, or manager of the applicant or permittee; any person owning a five percent or more interest, beneficial or otherwise, in the applicant’s or permittee’s business; or any other person conducting or managing the affairs of the applicant or permittee or of the proposed licensed premises, in whole or in part. These fingerprints may be used to obtain and review any police record for the purposes set may be relevant pursuant to §20-15-5 of this code, and to use the fingerprints furnished to conduct a criminal records check through the Criminal Identification Bureau of the West Virginia State Police and a national criminal history check through the Federal Bureau of Investigation. The results of the checks shall be provided to the secretary.

(5) Acquire for the state in the name of the Department of Environmental Protection by purchase, condemnation, lease, or agreement, or accept or reject for the state, in the name of the Department of Environmental Protection, gifts, donations, contributions, bequests, or devises of money, security, or property, both real and personal, and any interest in property;

(6) Provide for workshops, training programs and other educational programs, apart from or in cooperation with other governmental agencies, necessary to ensure adequate standards of public service in the department. The secretary may provide for technical training and specialized instruction of any employee. Approved educational programs, training, and instruction time may be compensated for as a part of regular employment. The secretary is authorized to pay out of federal or state funds, or both, as such funds are available, fees and expenses incidental to the educational programs, training, and instruction. Eligibility for participation by employees shall be in accordance with guidelines established by the secretary;

(7) Issue certifications required under 33 U.S.C. §1341 of the federal Clean Water Act and enter into agreements in accordance with the provisions of §22-11-7a of this code. Prior to issuing any certification the secretary shall solicit from the Division of Natural Resources reports and comments concerning the possible certification. The Division of Natural Resources shall direct the reports and comments to the secretary for consideration;

(8) Notwithstanding any provisions of this code to the contrary, employ in-house counsel to perform all legal services for the secretary and the department, including, but not limited to, representing the secretary, any chief, the department or any office thereof in any administrative proceeding or in any proceeding in any state or federal court. Additionally, the secretary may call upon the Attorney General for legal assistance and representation as provided by law; and

(9) Cooperate with the State Resiliency Office to the fullest extent practicable to assist that office in fulfilling its duties.

(e) The secretary shall be appointed by the Governor, by and with the advice and consent of the Senate, and serves at the will and pleasure of the Governor.

(f) At the time of his or her initial appointment, the secretary must be at least 30 years old and shall be selected with special reference and consideration given to his or her administrative experience and ability, to his or her demonstrated interest in the effective and responsible regulation of the energy industry and the conservation and wise use of natural resources. The secretary must have at least a bachelor’s degree in a related field and at least three years of experience in a position of responsible charge in at least one discipline relating to the duties and responsibilities for which the secretary will be responsible upon assumption of the office. The secretary may not be a candidate for or hold any other public office, may not be a member of any political party committee and shall immediately forfeit and vacate his or her office as secretary in the event he or she becomes a candidate for or accepts appointment to any other public office or political party committee.

(g) The secretary shall receive an annual salary as provided in §6-7-2a of this code and is allowed and shall be paid necessary expenses incident to the performance of his or her official duties. Prior to the assumption of the duties of his or her office, the secretary shall take and subscribe to the oath required of public officers prescribed by section five, article IV of the Constitution of West Virginia and shall execute a bond, with surety approved by the Governor, in the penal sum of $10,000, which executed oath and bond will be filed in the Office of the Secretary of State. Premiums on the bond shall be paid from the department funds.

§22-1-7. Offices within division.

Consistent with the provisions of this article, the secretary shall, at a minimum, maintain the following offices within the division:

(1) The Office of Abandoned Mine Lands and Reclamation, which is charged, at a minimum, with administering and enforcing, under the supervision of the secretary, the provisions of article two of this chapter;

(2) The Division of Mining and Reclamation, which is charged, at a minimum, with administering and enforcing, under the supervision of the  secretary, the provisions of articles three and four of this chapter;

(3) The Division of Air Quality, which is charged, at a minimum, with administering and enforcing, under the supervision of the secretary, the provisions of article five of this chapter;

(4) The Office of Oil and Gas, which is charged, at a minimum, with administering and enforcing, under the supervision of the  secretary, the provisions of articles six, seven, eight, nine and ten of this chapter; and

(5) The Division of Water and Waste Management, which is charged, at a minimum, with administering and enforcing, under the supervision of the  secretary, the provisions of articles eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen and twenty of this chapter.

§22-1-7a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§22-1-8. Supervisory officers.

(a) The secretary shall appoint a competent and qualified person to be the chief executive officer of each office specified in section seven of this article. The chief executive officer is the principal administrative officer of that office and is accountable and responsible for the orderly and efficient performance of the duties, functions and services of her or his office.

(b) There shall be in the department such other supervisory officers as the secretary determines is necessary to administer the functions of the department. Such supervisory officers are "administrators" as such term is defined in section two, article six, chapter twenty-nine of this code, notwithstanding the fact that the positions filled by such persons are not statutorily created. Any such supervisory officer may be designated by the secretary as a deputy director, assistant director, chief, administrator or other administrative title or designation. Each of the supervisory officers shall be appointed by the secretary and serve at the will and pleasure of the secretary. The compensation of such supervisory officers shall be fixed by the secretary. A single individual may be appointed to serve simultaneously in two distinct supervisory positions, but in a case where a dual appointment is made, the supervisory officer shall not receive additional compensation above that which would be paid for serving in one supervisory position.

(c) A supervisory officer appointed pursuant to the provisions of this section shall report directly to the secretary and shall, in addition to any functions vested in or required to be delegated to such officer, perform additional functions as the secretary may prescribe.

(d) Each supervisory officer of the department shall, before entering upon the discharge of his or her duties, take the oath of office prescribed by section five, article IV of the Constitution of West Virginia and shall execute a bond in the penalty of $2,000, with security to be approved by the Governor, conditioned upon the faithful discharge of their duties, a certificate of the oath and bond shall be filed in the office of the Secretary of State. Premiums on the bond shall be paid from the department funds.

§22-1-8a. General powers and duties of the Director of the Division of Mines and Minerals.

The Director of the Division of Mines and Minerals is hereby empowered and it shall be his duty to execute and carry out, administer and enforce such provisions of this chapter and chapter twenty-two-a of the code relating to surface and underground mining permits and coal mine reclamation inspections as are expressly conferred upon him by such provisions or delegated to him by the commissioner relating to mines and minerals.

§22-1-9. Environmental Protection Advisory Council.

(a) There is created within the Department of Environmental Protection the Environmental Protection Advisory Council. The Environmental Protection Advisory Council consists of eight members. The secretary serves as an ex officio member of the council and as its chair. The remaining seven members are appointed by the Governor. Each member serves for a term of four years and may be reappointed. Vacancies on the council shall be filled within sixty days after the vacancy occurs.

(b) Two members of the council shall represent industries regulated by the department or their trade associations. Two members shall represent organizations advocating environmental protection. One member shall represent organizations representing local governments. One member shall represent public service districts. One member shall represent the largest coal miner's labor organization in the state. In making subsequent appointments this balance of membership shall be maintained.

(c) Appointed members shall be paid the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law for each day or portion thereof engaged in the discharge of official duties.

(d) The council shall meet at least once every quarter, at the call of the chair or upon the unanimous request of its members.

(e) The council shall:

(1) Consult with and advise the director on program and policy development, problem solving and other appropriate subjects;

(2) Identify and define problems associated with the implementation of the policy set forth in section one of this article;

(3) Provide and disseminate to industry and the public early identification of major federal program and regulatory changes;

(4) Provide a forum for the resolution of conflicts between constituency groups;

(5) To the extent possible, strive for consensus on the development of overall environmental policy; and

(6) Provide an annual report to the Joint Committee on Government and Finance on or before January 1 of each year relating to its findings with regard to the department's performance during the previous year. The report will specifically address the department's performance in accomplishing the nine purposes set forth in subsection (b), section one of this article.

(f) Notwithstanding any other provision of this code to the contrary, upon approval by majority vote of the Environmental Protection Advisory Council's members, the council may submit recommendations for rulemaking to the Secretary of the Department of Environmental Protection. The secretary shall consider the council's recommendations for rulemaking when developing agency rules to be submitted for legislative approval.

§22-1-10. Allocation of appropriations and effect on personnel.

(a) The director may, with the exception of the special reclamation fund established in section eleven, article three of this chapter, expend, in accordance with the provisions of chapter five-a of this code, from special revenue accounts, and funds established pursuant to this chapter and chapters twenty-two-b and twenty-two-c of this code, amounts necessary to implement and administer the general powers, duties and responsibilities of the Division of Environmental Protection: Provided, That federal funds required by law to be expended for a specific purpose may not be expended for any purpose contrary to the laws, rules or regulations of the federal government.

(b) With respect to employees affected by the creation of the division or the transfer of functions and offices to the division the layoff and recall rights of such employees within the classified service of the state as provided in subsections (5) and (6), section ten, article six, chapter twenty-nine of this code are limited to the department of commerce, labor and environmental resources and further limited to an occupational group substantially similar to the occupational group established by the classification and compensation plan for the classified service of the agency or board in which the employee was employed: Provided, That the employee has the qualifications established for the job class. The duration of recall rights provided in this subsection is limited to two years or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section abridges the rights of employees within the classified service of the state as provided in sections ten and ten-a, article six, chapter twenty-nine of this code.

(c) The director is empowered to authorize the payment of all or any part of the reasonable expenses of employees of the division in moving their household furniture and effects as a result of a reassignment of such employee caused by a transfer of functions or offices to the division.

§22-1-11. Saving provisions.

(a) All orders, determinations, rules, permits, grants, contracts, certificates, licenses, waivers, bonds, authorizations and privileges which have been issued, made, granted, or allowed to become effective by the Governor, any state department or agency or official thereof, or by a court of competent jurisdiction, in the performance of functions which have been transferred to the director or to the division, and were in effect on the date such transfer occurred continue in effect, for the benefit of the division, according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with the law by the Governor, the secretary, the director, or other authorized official, a court of competent jurisdiction, or by operation of law.

(b) Any proceedings, including notices of proposed rulemaking, or any application for any license, permit, certificate, or financial assistance pending before any department, division or other office, functions of which were transferred to the division are not affected by the transfer. Orders issued in any such proceedings shall continue in effect until modified, terminated, superseded, or revoked by the Governor, the secretary, the director, by a court of competent jurisdiction, or by operation of law. Nothing in this subsection prohibits the discontinuance or modification of any such proceeding under the same terms and conditions and to the same extent that such proceeding could have been discontinued or modified if the division had not been created or if functions or offices had not been transferred to the division. The director is authorized to propose legislative rules in accordance with the provisions of chapter twenty-nine-a of this code for the orderly transfer of proceedings continued under the provisions of this subsection.

(c) Except as provided in subsection (e) of this section, the creation of the division and the subsequent transfer of functions to it do not affect suits commenced prior to the effective date of the creation or any transfer of functions or offices to it, and in all such suits, proceedings shall be had, appeals taken, and judgments rendered in the same manner and with like effect as if the creation or transfer had not occurred.

 (d) No suit, action or other proceeding commenced by or against any officer in the official capacity of such individual as an officer of any department, division or other office, functions of which were transferred to the division abates by reason of such transfer. No cause of action by or against any department, division or other office, functions of which were transferred to the division, or by or against any officer thereof in the official capacity of such officer, abates by reason of the transfer.

(e) If, before the transfer, any department, division or other office, or officer thereof in the official capacity of such officer, was a party to a suit, and any function of such department, division or other office, or officer was transferred to the secretary, the director or other officer of the division, then such suit shall be continued with the secretary, the director or other appropriate officer substituted or added as a party.

§22-1-12. Public information.

The division shall collect, organize and from time to time distribute to the public, through news media or otherwise, interesting facts, information and data concerning the state's environment and its environmental regulatory programs. The director may organize and promote lectures, demonstrations, symposiums, schools and other educational programs relating to the state's environment and its protection. Video tapes, motion pictures, slide films and other photographic services may be provided for instruction on the environment and its protection for schools, other governmental agencies, and civic organizations under such rules as may be prescribed by the director.

The director shall select and designate a competent and qualified person as division public information officer, who is responsible for the organization and management of the division's public information and public affairs programs.

§22-1-13. Notification of permitting decisions.

Any person may request the director to notify the person of a decision to issue or deny a specific permit applied for under this chapter. The request must be in writing and received by the director within the public comment period or at a public hearing held for the specific permit application. If there is no public comment period or public hearing held for the specific permit application the director is required to make the notification under this section only if the request for notification is received by the director at least two working days prior to notifying the applicant of the decision. The director shall notify all persons who have made a timely request under this section of the decision on the application at the same time the applicant is notified of the decision. The notification shall advise the person of any appeal rights under this chapter.

§22-1-14. Stream restoration fund; creation; special account; purposes and expenditures.

(a) There is hereby created in the state Treasury a special interest bearing account known as the "stream restoration fund". Moneys received by the division pursuant to transfers from any other account lawfully transferred, from the federal government and other sources, from mitigation, moneys, from gifts, bequests, donations and contributions, and other moneys lawfully received from whatever source, may be deposited in the state Treasury to the credit of the stream restoration fund.

(b) Expenditures from the fund are not authorized from collections but shall only be authorized by line item appropriation by the Legislature. The moneys are to be used and expended for the restoration and enhancement of the streams and water resources of this state which have been affected by coal mining or acid mine drainage.

§22-1-15. Laboratory certification; rules; fees; revocation and suspension; environmental laboratory certification fund; programs affected; and appeals.

(a) The director shall promulgate rules to require the certification of laboratories conducting waste and wastewater tests and analyses to be used for purposes of demonstrating compliance under the covered statutory programs, including reasonable annual certification fees based upon the type or classification of tests or analyses being conducted by laboratories, to be assessed against laboratory owners or operators in an amount necessary to cover the actual costs of administration of this program and the processing of certification applications, to be deposited in the state Environmental Laboratory Certification Fund created pursuant to this section. By July 1, of each year, the director shall provide to the secretary a written report reflecting funds collected, how the funds were expended, and an assessment of the adequacy of the funding to administer the program.

(b) After the effective date of the rules promulgated pursuant to this section, waste and wastewater tests and analyses conducted in laboratories that are not certified for the parameters or toxicity being tested or analyses shall not be accepted by the division, except as otherwise provided, as being in compliance with the requirements, rules or orders of the division issued under authority of one or more of the covered statutory programs: Provided, That field tests and remote monitoring or testing equipment which is conducted or located away from any laboratory may be considered a laboratory for purposes of assessing the fee, but shall be subject to such quality assurance and quality control standards as may be established by the director in rules promulgated pursuant to this section. The director shall provide by rule for the granting of certification for laboratories located outside of West Virginia pursuant to this section if the laboratories provide written documentation that approval has been received under requirements in their state and determined by the director to be equivalent to the West Virginia laboratory certification program. The reciprocal certification shall be granted only for testing methods and parameters for which the laboratory holds a valid authorization in the other state and only for laboratories in states which allow reciprocity with respect to laboratories located in this state.

(c) Application shall be made to the director for approval or certification by laboratories on forms and in a manner prescribed by the director.

(d) Certification shall be renewed on an annual basis. The existing certification remains in effect until the director notifies the applicant for renewal that renewal of certification has been granted or denied.

(e) Certification shall be granted for those tests or parameters for which the laboratory demonstrates adequate performance on performance evaluation tests based on the criteria established in rules by the director. The director shall, by rule, establish criteria governing what shall be considered in any decision to deny or issue a certification.

(f) Failure to comply with the requirements of the applicable analytical methods and procedures or standards specified in the rules of the director is grounds for revocation or suspension of certification for the affected test procedures or parameters.

(g) No person subject to the covered statutory programs shall be allowed to use data or test results from waste and wastewater tests and analyses conducted at laboratories lacking certification for purposes of demonstrating compliance under the covered statutory programs: Provided, That any person whose data or test results are invalidated because that person had relied upon a laboratory which loses its certification, shall be granted 30 days after notice of the invalidated test results by the director during which data or test results may be repeated or reanalyzed by a certified laboratory for purposes of demonstrating compliance under the covered statutory programs.

(h) A special revenue fund designated the Environmental Laboratory Certification Fund shall be continued in the State Treasury on July 1, 1994. The net proceeds of all fees collected pursuant to this section shall be deposited in the environmental laboratory certification fund. Upon line-item appropriation by the Legislature, the director shall expend the proceeds, including the interest thereon, of the environmental laboratory certification fund solely for the administration of the requirements of this section.

(i) For purposes of this section, “covered statutory program” means one of the regulatory programs developed under statutory authority of one of the following acts of the Legislature: Water Pollution Control Act, §22-11-1 et seq. of this code; Hazardous Waste Management Act, §22-18-1 et seq. of this code; Hazardous Waste Emergency Response Fund Act, §22-19-1 et seq. of this code; Underground Storage Tank Act, §22-17-1 et seq. of this code; the Solid Waste Management Act, §22-15-1 et seq. of this code; or the Groundwater Protection Act, §22-12-1 et seq. of this code.

(j) Any person adversely affected by an order or action by the director pursuant to this section, or aggrieved by the failure or refusal of the director to act within a reasonable time, or by the action of the director in granting or denying a certification or renewal of a certification, may appeal to the environmental quality board pursuant to §22B-1-1 et seq. of this code.

(k) The provisions of this section apply only to tests and analyses of waste or wastewater subject to regulation by the Division of Environmental Protection. The provisions of this section do not apply to tests or analyses of potable or drinking water.

§22-1-16. Time for commencing proceedings.

Notwithstanding any provision of this code to the contrary, no action, suit or proceeding for the administrative, civil or criminal enforcement of any provision of this chapter may be entertained unless commenced within three years from the date the right to bring the action, suit or proceeding has accrued. The limitation of this section applies, but is not limited to, actions, suits or proceedings for the recovery of any fine, penalty or forfeiture, pecuniary or otherwise. This section does not apply to the enforcement of any provision when the violation is part of a continuing violation and the last act of the continuing violation occurred within three years from the date of the commencement of the enforcement action.

§22-1-17. Special reclamation fund advisory council.

(a) There is hereby created within the Department of Environmental Protection a special reclamation fund advisory council. The council's purpose is to ensure the effective, efficient and financially stable operation of the special reclamation fund. The special reclamation advisory council shall consist of eight members, including the secretary of the Department of Environmental Protection or his or her designee, the treasurer of the State of West Virginia or his or her designee, the director of the national mine land reclamation center at West Virginia University and five members to be appointed by the Governor with the advice and consent of the Senate.

(b) Each appointed member of the council shall be selected based on his or her ability to serve on the council and effectuate its purposes. The Governor shall appoint, from a list of three names submitted by the major trade association representing the coal industry regulated under article three of this chapter, a member to represent the interests of the industry. The Governor shall appoint, from a list of three names submitted by organizations advocating environmental protection, one member to represent the interest of environmental protection organizations. The Governor shall appoint, from a list of four names submitted by the coal mining industry and the organizations advocating environmental protection, one member who, by training and profession, is an actuary or an economist. The Governor shall appoint, from a list of three names submitted by the united mine workers of America, one member to represent the interests of coal miners. The Governor shall appoint a member to represent the interests of the general public.

(c) The terms of all members shall begin on July 1, 2002. The secretary shall be an ex officio, nonvoting member and serve as chairperson of the council. The terms of the Governor's appointees shall be for six years. Appointees may be reappointed to serve on the council. The terms of the appointed members first taking office are to be expired as designated by the Governor at the time of the nomination, two at the end of the second year, two at the end of the fourth year and one at the end of the sixth year. As the original appointments expire, each subsequent appointment will be for a full six-year term. Any appointed member whose term has expired shall serve until a successor has been duly appointed and qualified. Any person appointed to fill a vacancy is to serve only for the unexpired term.

(d) Appointed members of the council shall be paid the same compensation and expense reimbursement as is provided for members of the Legislature pursuant to sections six and eight, article two-a, chapter four of this code. Council members who are state employees or officials shall be reimbursed for expenses in accordance with the applicable agency's policy.

(e) The council shall meet at the call of the chairperson or his or her designee, but not less than once every six months. The secretary shall provide funds for necessary administrative and technical services for the council from the special reclamation fund.

(f) The council shall, at a minimum:

(1) Study the effectiveness, efficiency and financial stability of the special reclamation fund with an emphasis on development of a financial process that ensures long-term stability of the special reclamation program;

(2) Identify and define problems associated with the special reclamation fund, including, but not limited to, the enforcement of federal and state law, regulation and rules pertaining to contemporaneous reclamation;

(3) Evaluate bond forfeiture collection, reclamation efforts at bond forfeiture sites and compliance with approved reclamation plans as well as any modifications;

(4) Provide a forum for a full and fair discussion of issues relating to the special reclamation fund;

(5) Contract with a qualified actuary who shall make a determination as to the special reclamation fund's fiscal soundness. This determination shall be completed on December 31, 2004, and every four years thereafter. The review is to include an evaluation of the present and prospective assets and liabilities of the special reclamation fund; and

(6) Study and recommend to the Legislature alternative approaches to the current funding scheme of the special reclamation fund, considering revisions which will assure future proper reclamation of all mine sites and continued financial viability of the state's coal industry.

(g) On or before January 1, 2003, and every year thereafter, the council shall submit to the Legislature and the Governor a report on the adequacy of the special reclamation tax and the fiscal condition of the special reclamation fund. The report shall, at a minimum, contain:

(1) A recommendation as to whether or not any adjustments to the special reclamation tax should be made considering the cost, timeliness and adequacy of bond forfeiture reclamation, including water treatment;

(2) A discussion of the council's required study issues as set forth in subsection (f) of this section; and

(3) The availability of federal abandoned mine lands funds for West Virginia reclamation projects.

§22-1A-1. Short title.

This article shall be known and may be cited as the Private Real Property Protection Act.

§22-1A-2. Legislative findings and purpose.

It is the policy of this state that action by the Division of Environmental Protection affecting private real property is subject to such protection as is afforded by the Constitutions of the United States and of West Virginia and the principles of nuisance law. The Legislature intends that the Division of Environmental Protection follow certain procedures to ensure Constitutional protection of private real property rights, while also meeting its obligation to protect the quality of the environment, and reduce the burden on citizens, local governments and this state caused by certain actions affecting private real property. The purpose of this article is to establish an orderly, consistent process that better enables the division to evaluate how potential administrative action by it may affect privately owned real property. It is not the purpose of this article to reduce or expand the scope of private real property protections provided in section nine, article three of the Constitution of West Virginia and the fifth and fourteenth amendments of the Constitution of the United States, as those provisions have been and may in the future be interpreted by the state and federal courts of competent jurisdiction with respect to such matters for this state.

§22-1A-3. Actions by Division of Environmental Protection; requirement for assessment.

(a) Whenever the Division of Environmental Protection considers any action within its statutory authority that is reasonably likely to deprive a private real property owner of his or her property in fee simple or to deprive an owner of all productive use of his or her private real property, it shall prepare an assessment that includes, but need not be limited to, the following:

(1) An identification of the risk created by the private real property use, and a description of the environmental, health, safety, or other benefit to be achieved by the proposed action;

(2) The anticipated effects, if any, on other real property owners or on the environment if the division does not take the proposed action;

(3) An explanation of how the division believes its action advances the purpose of protecting against the risk;

(4) The reasons that the division believes that its action is likely to result in requiring the state, under applicable Constitutional principles and case law, to compensate the owner of private real property, including a description of how the action affects the use or value of private real property;

(5) Alternatives, if any, to the proposed action that the division believes will fulfill the legal obligations of the division, reduce the impact on the private real property owner and reduce the likelihood of requiring compensation; and

(6) An estimate of the cost to the state for compensation in the event such compensation is required.

No assessment is required under this article, unless the West Virginia Supreme Court of Appeals or the United State Supreme Court has under similar factual circumstances required compensation to be paid.

(b) In the case of an immediate threat to human health and safety that constitutes an emergency and requires an immediate response, the assessment required by this section may be delayed until after the emergency response is completed.

(c) The following do not require an assessment under this section:

(1) Licensing or permitting conditions, requirements or limitations to the use of private real property pursuant to any applicable state or federal statutes, rules or regulations; or

(2) Rules and emergency rules of the division that are reasonably likely to limit the use of private real property pursuant to any applicable state or federal statutes, rules or regulations; or

(3) Enforcement actions undertaken by the division pursuant to any applicable state or federal statutes, rules or regulations.

§22-1A-4. Buffer zones.

(a) Prior to the Division of Environmental Protection requiring that a buffer zone be created on private real property, the division shall prepare a report which shall identify the public purpose or policy which is to be served by the creation of the buffer zone and how the creation and maintenance of the buffer zone promotes or fulfills that public purpose or policy. This report is in addition to any other assessment required pursuant to the provisions of this article.

(b) Any report made pursuant to this section is public information.

(c) In the case of an immediate threat to human health and safety that constitutes an emergency and requires an immediate response, the report required by this section may be delayed until after the emergency response is completed.

§22-1A-5. Remedies.

When a court of competent jurisdiction determines that action of the Division of Environmental Protection, within its statutory authority, requires that compensation be paid to a private real property owner pursuant to section nine, article three of the Constitution of West Virginia, or the fifth or fourteenth amendments of the Constitution of the United States or the principles of nuisance law, the private real property owner is also entitled to his or her reasonable attorney fees and costs:

(1) If the court determines that the division failed to perform the assessment required in section three of this article; or

(2) If the court determines that the division performed the assessment required in section three of this article but failed to conclude that its action was reasonably likely to require compensation to be paid to the private real property owner.

§22-1A-6. Scope of application.

The provisions of this article only apply to the programs administered by the Division of Environmental Protection on the effective date of this article.

§22-2-1. Short title.

This article shall be known and cited as the Abandoned Mine Lands and Reclamation Act.

§22-2-2. Legislative findings; intent and purpose of article; jurisdiction and authority of director.

The Legislature finds that there are a substantial number of acres of land throughout the state that were disturbed by surface-mining operations prior to the time of present day effective control and regulation. There was little or no reclamation conducted and the impacts from these unreclaimed lands impose social and economic costs on residents in nearby and adjoining areas as well as continue to impair environmental quality, prevent or damage the beneficial use of land or water resources, or endanger the health and safety of the public.

Further, the Legislature finds and declares that, due to the passage of the federal Surface Mining Control and Reclamation Act of 1977, certain areas within the boundaries of this state do not meet present day standards for reclamation.

Further, the Legislature finds that Title IV of the federal Surface Mining Control and Reclamation Act of 1977, Public Law 95-87, provides for the collection of 35¢ per ton of coal produced from surface-mine operations and 15¢ per ton of coal produced from underground mine operations in West Virginia to be collected by the secretary of the United States department of the interior until September 30, 2004. At least fifty percent of the funds collected are to be allocated directly to the State of West Virginia to accomplish reclamation of abandoned coal mining operations, as of the date the State of West Virginia obtained an approved abandoned mine reclamation plan in accordance with Sections 405 and 503 of the federal Surface Mining Control and Reclamation Act of 1977, as amended.

Therefore, it is the intent of the Legislature by this article to vest jurisdiction and authority in the director of the Division of Environmental Protection to maintain program approval by, and receipt of funds from, the United States department of the interior to accomplish the desired restoration and reclamation of our land and water resources.

§22-2-3. Definitions.

(a) All definitions set forth in article three of this chapter apply to those defined terms which also appear in this article, if applicable.

(b) For the purposes of this article the following words have the meanings ascribed to them in this subsection:

(1) "Director" means the director of the Division of Environmental Protection or such other person to whom the director has delegated authority or duties pursuant to sections six or eight, article one of this chapter;

(2) "Division" means the Division of Environmental Protection; and

(3) "Secretary" means the secretary of the United States Department of Interior.

§22-2-4. Abandoned land reclamation fund and objectives of fund; lands eligible for reclamation.

(a) All abandoned land reclamation funds available under Title IV of the federal Surface Mining Control and Reclamation Act of 1977, as amended, private donations received, any state appropriated or transferred funds, or funds received from the sale of land by the secretary under this article shall be deposited with the Treasurer of the State of West Virginia to the credit of the abandoned land reclamation fund heretofore created, and expended pursuant to the requirements of this article.

(b) Moneys in the fund may be used by the secretary for the following:

(1) Reclamation and restoration of land and water resources adversely affected by past coal surface-mining operations, including, but not limited to, reclamation and restoration of abandoned surface mine areas, abandoned coal processing areas and abandoned coal processing waste areas; sealing and filling abandoned deep mine entries and voids; planting of land adversely affected by past coal surface-mining operations to prevent erosion and sedimentation; prevention, abatement, treatment and control of water pollution created by coal mine drainage, including restoration of stream beds and construction and operation of water treatment plants; prevention, abatement and control of burning coal processing waste areas and burning coal in situ; prevention, abatement and control of coal mine subsidence; and payment of administrative expenses and all other necessary expenses incurred to accomplish the purpose of this article: Provided, That all expenditures from this fund shall reflect the following priorities in the order stated:

(A) The protection of public health, safety, general welfare and property from extreme danger of adverse effects of past surface-mining practices;

(B) The protection of public health, safety and general welfare from adverse effects of past coal surface-mining practices;

(C) The restoration of land and water resources and environment previously degraded by adverse effects of past coal surface-mining practices, including measures for the conservation and development of soil, water (excluding channelization), woodland, fish and wildlife, recreation resources and agricultural productivity;

(D) Research and demonstration projects relating to the development of surface-mining reclamation and water quality control program methods and techniques;

(E) The protection, repair, replacement, construction or enhancement of public facilities such as utilities, roads, recreation and conservation facilities adversely affected by past coal surface-mining practices; and

(F) The development of publicly owned land adversely affected by past coal surface-mining practices, including land acquired as provided in this article for recreation and historic purposes, conservation and reclamation purposes and open space benefits.

(2)(A) The secretary may expend the funds allocated to the state in any year through the grants made available under paragraphs (1) and (5), subsection (g) of Section 402 of the federal Surface Mining Control and Reclamation Act of 1977, as amended, for the purpose of protecting, repairing, replacing, constructing or enhancing facilities relating to water supply, including water distribution facilities and treatment plants, to replace water supplies adversely affected by coal surface-mining practices.

(B) If the adverse effects on water supplies referred to in this subdivision occurred both prior to and after the August 3, 1977, subsection (c) of this section does not prohibit the state from using funds for the purposes of this subdivision if the secretary determines that the adverse effects occurred predominantly prior to August 3, 1977.

(3) The secretary may receive and retain up to thirty percent of the total of the grants made annually to the state under paragraphs (1) and (5), subsection (g) of Section 402 of the federal Surface Mining Control and Reclamation Act of 1977, as amended, if the amounts are deposited to the credit of either:

(A) The special account in the State Treasury designated the "Reclamation and Restoration Fund" is hereby continued. Moneys in the fund may be expended by the secretary to achieve the priorities stated in subdivision (1) of this subsection after September 30, 1995 and for associated administrative and personnel expenses; or

(B) The special account in the State Treasury designated the "Acid Mine Drainage Abatement and Treatment Fund" is hereby continued. Moneys in the fund may be expended by the secretary to implement, in consultation with the United States soil conservation service, acid mine drainage abatement and treatment plans approved by the secretary of the United States department of interior and for associated administrative and personnel expenses. The plans shall provide for the comprehensive abatement of the causes and treatment of the effects of acid mine drainage within qualified hydrologic units affected by coal surface-mining practices. The moneys accrued in this fund, any earnings thereon, and yield from investments by the State Treasurer or West Virginia Investment Management Board are reserved solely and exclusively for the purposes set forth in this section of the code. Any interest accrued on any moneys deposited into the Acid Mine Drainage Abatement and Treatment Fund which previously defaulted from that account into general revenue shall be credited back to the fund on or before July 1, 2014.

(c) Except as provided for in this subsection, lands and water eligible for reclamation or drainage abatement expenditures under this article are those which were mined for coal or which were affected by the mining, wastebanks, coal processing or other coal mining processes, and abandoned or left in an inadequate reclamation status prior to August 3, 1977, and for which there is no continuing reclamation responsibility: Provided, That moneys from the funds made available by the secretary of the United States department of interior pursuant to paragraphs (1) and (5), subsection (g), Section 402 of the federal Surface Mining Control and Reclamation Act of 1977, as amended, may be expended for the reclamation or drainage abatement of a site that: (1) The surface-mining operation occurred during the period beginning on August 4, 1977, and ending on or before January 21, 1981, and that any funds for reclamation or abatement which are available pursuant to a bond or other financial guarantee or from any other source, and not sufficient to provide for adequate reclamation or abatement of the site; or (2) the surface-mining operation occurred during the period beginning on August 4, 1977, and ending on or before November 5, 1990, and that the surety of the surface-mining operation became insolvent during that period, and as of November 5, 1990, funds immediately available from proceeding relating to the insolvency or from any financial guarantees or other sources are not sufficient to provide for adequate reclamation of the site: Provided, however, That the secretary, with the concurrence of the secretary of the United States department of interior, makes either of the above-stated findings, and that the site is eligible, or more urgent than the reclamation priorities set forth in paragraphs (A) and (B), subdivision (1), subsection (b) of this section.

(d) One purpose of this article is to provide additional and cumulative remedies to abate the pollution of the waters of the state, and nothing contained in this article abridges or alters rights of action or remedies now or hereafter existing, nor do any provisions in this article or any act done by virtue of this article estop the state, municipalities, public health officers or persons as riparian owners or otherwise in the exercise of their rights to suppress nuisances or to abate any pollution now or hereafter existing or to recover damages.

(e) Where the Governor certifies that the above objectives of the fund have been achieved and there is a need for construction of specific public facilities in communities impacted by coal development, and other sources of federal funds are inadequate and the secretary of the United States department of interior concurs, then the secretary may expend money from the fund for the construction.

§22-2-5. Powers and duties of director; program plans and reclamation projects.

(a) The director shall submit to the secretary a state reclamation plan and annual projects to carry out the purposes of this article.

(b) That reclamation plan shall generally identify the areas to be reclaimed, the purposes for which the reclamation is proposed, the relationship of the lands to be reclaimed and the proposed reclamation to surrounding areas, the specific criteria for ranking and identifying projects to be funded and the legal authority and programmatic capability to perform the work in conformance with the provisions of this article.

(c) On an annual basis, the director shall submit to the secretary an application for the support of the state program and implementation of specific reclamation projects. The annual requests shall include information as may be requested by the secretary including:

(1) A general description of each proposed project;

(2) A priority evaluation of each proposed project;

(3) A statement of the estimated benefits in such terms as number of acres restored, miles of stream improved, acres of surface lands protected from subsidence, population protected from subsidence, air pollution and hazards of mine and coal refuse disposal area fires;

(4) An estimate of the cost for each proposed project;

(5) In the case of proposed research and demonstration projects, a description of the specific techniques to be evaluated or objective to be attained;

(6) An identification of lands or interest therein to be acquired and the estimated cost; and

(7) In each year after the first in which a plan is filed under this article, an inventory of each project funded under the previous year's grant, which inventory shall include details of financial expenditures on the project together with a brief description of the project, including the project's location, the landowner's name, acreage and the type of reclamation performed.

(d) The costs for each proposed project under this section include actual construction costs, actual operation and maintenance costs of permanent facilities, planning and engineering costs, construction inspection costs and other necessary administrative expenses.

§22-2-6. Acquisition and reclamation of land adversely affected by past coal surface-mining practices.

(a) If the director makes a finding of fact that:

(1) Land or water resources have been adversely affected by past coal surface-mining practices;

(2) The adverse effects are at a stage where, in the public interest, action to restore, reclaim, abate, control or prevent should be taken;

(3) The owners of the land or water resources where entry must be made to restore, reclaim, abate, control or prevent the adverse effects of past coal surface-mining practices are not known or readily available; or

(4) The owners will not give permission for the director, his or her agents, employees or contractors to enter upon the property to restore, reclaim, abate, control or prevent the adverse effects of past coal surface-mining practices, then, upon giving notice by mail to the owners, if known, or if not known by posting notice upon the premises and advertising once in a newspaper of general circulation in the county in which the land lies, the director, his or her agents, employees or contractors have the right to enter upon the property adversely affected by past coal surface-mining practices and any other property to have access to the property to do all things necessary or expedient to restore, reclaim, abate, control or prevent the adverse effects. The entry shall be construed as an exercise of the police power of the state for the protection of public health, safety and general welfare and shall not be construed as an act of condemnation of property nor of trespass thereon. The moneys expended for the work and the benefits accruing to any premises so entered upon is chargeable against the land and mitigates or offsets any claim in or any action brought by any owner of any interest in the premises for any alleged damages by virtue of the entry: Provided, That this provision is not intended to create new rights of action or eliminate existing immunities.

(b) The director, his or her agents, employees or contractors have the right to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past coal surface-mining practices and to determine the feasibility of restoration, reclamation, abatement, control or prevention of the adverse effects. The entry shall be construed as an exercise of the police power of the state for the protection of public health, safety and general welfare and shall not be construed as an act of condemnation of property nor trespass thereon.

(c) The director may acquire any land by purchase, donation or condemnation, which is adversely affected by past coal surface-mining practices, if the director determines that acquisition of the land is necessary to successful reclamation and that:

(1) The acquired land, after restoration, reclamation, abatement, control or prevention of the adverse effects of past coal surface-mining practices will serve recreation, historic, conservation or reclamation purposes or provide open space benefits;

(2) Permanent facilities such as a treatment plant or a relocated stream channel will be constructed on the land for the restoration, reclamation, abatement, control or prevention of the adverse effects of past coal surface-mining practices; or

(3) Acquisition of coal refuse disposal sites and all coal refuse thereon will serve the purposes of this article or that public ownership is desirable to meet emergency situations and prevent recurrences of the adverse effects of past coal surface-mining practices.

(d) Title to all lands acquired pursuant to this section shall be in the name of the State of West Virginia, by the West Virginia Division of Environmental Protection. The price paid for land acquired under this section shall reflect the fair market value of the land as adversely affected by past coal surface-mining practices.

(e) The director is hereby authorized to transfer land obtained under subsection (c) of this section to the secretary. The director may purchase the land from the secretary after reclamation at the fair market value less the state's original acquisition price.

(f) The director may accept and local political subdivisions may transfer to the director land belonging to them to carry out the purposes set out in this article and in that event they have a preferential right to purchase the land after reclamation at the fair market value less the political subdivision's cost of acquisition, but at no time shall the director sell the land to a political subdivision at a price less than the cost of the acquisition and reclamation of the land: Provided, That if any land sold to a political subdivision under this subsection is not used for a valid public purpose as specified by the director in the terms and conditions of the sales agreement, then all rights, title and interest in the land revert to the West Virginia Division of Environmental Protection. Any moneys received from the sale shall be deposited in the abandoned land reclamation fund.

(g) Where land acquired pursuant to this section is considered to be suitable for industrial, commercial, residential or recreational development, the director may sell the land by public sale under a system of competitive bidding at not less than fair market value and pursuant to rules promulgated to ensure that the lands are put to proper use consistent with state and local land use plans.

(h) The director, if requested and after appropriate public notice, shall hold a public hearing in the county in which land acquired pursuant to this section is located. The hearing shall be held at a time which affords local citizens and government the maximum opportunity to participate in the decision concerning the use and disposition of the land after restoration, reclamation, abatement, control or prevention of the adverse effects of past coal surface-mining practices.

(i) In addition to the authority to acquire land under other provisions of this section, the director is authorized to use money in the fund to acquire land from any federal, state or local government or from a political subdivision thereof, or from any person, firm, association or corporation, if he or she determines that such is an integral and necessary element of an economically feasible plan for the project to construct or rehabilitate housing for persons disabled as the result of employment in the mines or work incidental thereto, persons displaced by acquisition of land pursuant to this section, or persons dislocated as the result of adverse effects of coal surface-mining practices which constitute an emergency as provided in section 410 of the federal Surface Mining Control and Reclamation Act of 1977, as amended, or persons dislocated as the result of natural disasters or catastrophic failures from any cause. The activities shall be accomplished under such terms and conditions as the director requires, which may include transfers of land with or without monetary consideration: Provided, That to the extent that the consideration is below the fair market value of the land transferred, no portion of the difference between the fair market value and the consideration shall accrue as a profit to such persons, firm, association or corporation. No part of the funds provided under this article may be used to pay the actual construction costs of housing. The director may carry out the purposes of this subsection directly or he or she may make grants and commitments for grants, and may advance money under such terms and conditions as he or she may require to any department, agency or political subdivision of this state, or any public body or nonprofit organization designated by the director.

§22-2-7. Liens against reclaimed land; petition by landowner; appeal; priority of liens.

(a) Within six months after the completion of a project to restore, reclaim, abate, control or prevent adverse effects of past coal surface-mining practices on a privately owned land, the director shall itemize the moneys so expended and may file a statement thereof in the office of the clerk of the county commission in the county in which the land lies, together with a notarized appraisal by an independent appraiser of the value of the land before the restoration, reclamation, abatement, control or prevention of adverse effects of past coal surface-mining practices, if the moneys so expended result in a significant increase in property value. The statement constitutes a lien upon the land. The lien shall not exceed the amount determined by the appraisal to be the increase in the market value of the land as a result of the restoration, reclamation, abatement, control or prevention of the adverse effects of past coal surface-mining practices. No lien may be filed against the property of any person in accordance with this subsection, who owned the surface prior to May 2, 1977, and who neither consented to, nor participated in, nor exercised control over the mining operation which necessitated the reclamation performed hereunder.

(b) The landowner may petition the director within sixty days of the filing of the lien to determine the increase in the market value of the land as a result of the restoration, reclamation, abatement, control or prevention of the adverse effects of past coal surface-mining practices. The amount reported to be the increase in value of the premises is the amount of lien and shall be recorded with the statement herein provided. Any party aggrieved by the decision may appeal to the circuit court of the county in which the land is located.

(c) The statement filed pursuant to subsection (a) of this section is a lien upon the land as of the date of the expenditure of the moneys and has priority as a lien second only to the lien of real estate taxes imposed upon the land.

§22-2-8. Filling voids and sealing tunnels.

(a) The Legislature declares that voids, open and abandoned tunnels, shafts and entryways and subsidence resulting from any previous coal surface-mining operation are a hazard to the public welfare and safety and that surface impacts of any underground or surface-mining operation may degrade the environment. The director is authorized to fill the voids, seal the abandoned tunnels, shafts and entryways, and reclaim surface impacts of underground or surface mines and remove water and other matter from mines which the director determines could endanger life and property, are a hazard to the public welfare and safety or degrade the environment.

(b) In those instances where coal mine waste piles are being reworked for conservation purposes, the incremental costs of disposing of the wastes from such operations by filling voids and sealing tunnels may be eligible for funding, if the disposal of those wastes meets the purposes of this article.

(c) The director may acquire by purchase, donation, easement or otherwise such interest in land as he or she determines necessary to carry out the provisions of this section.

§22-2-9. General and miscellaneous powers and duties of director; cooperative agreements; injunctive relief; water treatment plants and facilities; transfer of funds and interagency cooperation.

(a) The director is authorized to engage in any work and to do all things necessary and proper, including promulgation of rules, to implement and administer the provisions of this article.

(b) The director is authorized to engage in cooperative projects under this article with any other agency of the United States of America, any state, county or municipal agency or subdivision thereof.

(c) The director may request the Attorney General, who is hereby authorized to initiate, in addition to any other remedies provided for in this article, in any court of competent jurisdiction, an action in equity for an injunction to restrain any interference with the exercise of the right to enter or to conduct any work provided in this article.

(d) The director has the authority to construct and operate a plant or any facilities for the control and treatment of water pollution resulting from mine drainage. The extent of this control and treatment may be dependent upon the ultimate use of the water: Provided, That this subsection does not repeal or supersede any portion of the applicable federal or state water pollution control laws and no control or treatment under this section may be less than that required under any applicable federal or state water pollution control law. The construction of any facilities may include major interceptors and other facilities appurtenant to the plant.

(e) All departments, boards, commissions and agencies of the state shall cooperate with the director by providing technical expertise, personnel, equipment, materials and supplies to implement and administer the provisions of this article.

§22-3-1. Short title.

This article shall be known and cited as the Surface Coal Mining and Reclamation Act.

§22-3-2. Legislative findings and purpose; jurisdiction vested in Division of Environmental Protection; authority of secretary; inter-departmental cooperation.

(a) The Legislature finds that it is essential to the economic and social well-being of the citizens of the State of West Virginia to strike a careful balance between the protection of the environment and the economical mining of coal needed to meet energy requirements.

(1) Further, the Legislature finds that there is great diversity in terrain, climate, biological, chemical and other physical conditions in parts of this nation where mining is conducted; that the State of West Virginia in particular needs an environmentally sound and economically healthy mining industry; and  therefor it may be necessary for the  secretary to promulgate rules which vary from federal regulations as is provided for in sections 101 (f) and 201 (c)(9) of the federal Surface Mining Control and Reclamation Act of 1977, as amended, “Public Law 95-87.”

(2) Further, the Legislature finds that unregulated surface coal mining operations may result in disturbances of surface and underground areas that burden and adversely affect commerce, public welfare and safety by destroying or diminishing the utility of land for commercial, industrial, residential, recreational, agricultural and forestry purposes; by causing erosion and landslides; by contributing to floods; by polluting the water and river and stream beds; by destroying fish, aquatic life and wildlife habitats; by impairing natural beauty; by damaging the property of citizens; by creating hazards dangerous to life and property; and by degrading the quality of life in local communities, all where proper mining and reclamation is not practiced.

(3) Further, the Legislature finds that the reasonable control of blasting associated with surface mining within the State of West Virginia is in the public interest and will promote the protection of the citizens of the State of West Virginia and their property without sacrificing economic development.  It is the policy of the State of West Virginia, in cooperation with other governmental agencies, public and private organizations, and the citizens of this state, to use reasonable means and measures to prevent harm from the effects of blasting to its property and citizens.

(b) Therefore, it is the purpose of this article to:

(1) Expand the established and effective statewide program to protect the public and the environment from the adverse effects of surface-mining operations;

(2) Assure that the rights of surface and mineral owners and other persons with legal interest in the land or appurtenances to land are adequately protected from the operations;

(3) Assure that surface-mining operations are not conducted where reclamation as required by this article is not feasible;

(4) Assure that surface-mining operations are conducted in a manner to adequately protect the environment;

(5) Assure that adequate procedures are undertaken to reclaim surface areas as contemporaneously as possible with the surface-mining operations;

(6) Assure that adequate procedures are provided for public participation where appropriate under this article;

(7) Assure the exercise of the full reach of state common law, statutory and constitutional powers for the protection of the public interest through effective control of surface-mining operations;

(8) Assure that the coal production essential to the nation's energy requirements and to the State's economic and social well-being is provided; and

(9) Vest in the secretary the authority to enforce all of the laws, regulations and rules established to regulate blasting consistent with the authority granted in sections thirty-four through thirty-nine of this article.

(c) In recognition of these findings and purposes, the Legislature vests authority in the secretary of the Department of Environmental Protection to:

(1) Administer and enforce the provisions of this article as it relates to surface mining to accomplish the purposes of this article;

(2) Conduct hearings and conferences or appoint persons to conduct them in accordance with this article;

(3) Promulgate, administer and enforce rules pursuant to this article;

(4) Enter into a cooperative agreement with the Secretary of the United States Department of the Interior to provide for state regulation of surface-mining operations on federal lands within West Virginia consistent with section 523 of the federal Surface Mining Control and Reclamation Act of 1977, as amended; and

(5) Administer and enforce rules promulgated pursuant to this chapter to accomplish the requirements of programs under the federal Surface Mining Control and Reclamation Act of 1977, as amended.

(d) The secretary of the Department of Environmental Protection and the director of the Office of Miners Health, Safety and Training shall cooperate with respect to each agency's programs and records to effect an orderly and harmonious administration of the provisions of this article. The  secretary of the  Department of Environmental Protection may avail himself or herself of any services which may be provided by other state agencies in this State and other states or by agencies of the federal government, and may reasonably compensate them for  those services. Also, he or she may receive any federal funds, state funds or any other funds, and enter into cooperative agreements, for the reclamation of land affected by surface mining.

§22-3-3. Definitions.

As used in this article, unless used in a context that clearly requires a different meaning, the term:

(a) "Adequate treatment" means treatment of water by physical, chemical or other approved methods in a manner so that the treated water does not violate the effluent limitations or cause a violation of the water quality standards established for the river, stream or drainway into which the water is released.

(b) "Affected area" means, when used in the context of surface mining activities, all land and water resources within the permit area which are disturbed or utilized during the term of the permit in the course of surface mining and reclamation activities. "Affected area" means, when used in the context of underground mining activities, all surface land and water resources affected during the term of the permit: (1) By surface operations or facilities incident to underground mining activities; or (2) by underground operations.

(c) "Adjacent areas" means, for the purpose of permit application, renewal, revision, review and approval, those land and water resources, contiguous to or near a permit area, upon which surface mining and reclamation operations conducted within a permit area during the life of the operations may have an impact. "Adjacent areas" means, for the purpose of conducting surface mining and reclamation operations, those land and water resources contiguous to or near the affected area upon which surface mining and reclamation operations conducted within a permit area during the life of the operations may have an impact.

(d) "Applicant" means any person who has or should have applied for any permit pursuant to this article.

(e) "Approximate original contour" means that surface configuration achieved by the backfilling and grading of the mined areas so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all highwalls and spoil piles eliminated: Provided, That water impoundments may be permitted pursuant to subdivision (8), subsection (b), section thirteen of this article: Provided, however, That minor deviations may be permitted in order to minimize erosion and sedimentation, retain moisture to assist revegetation, or to direct surface runoff.

(f) "Assessment officer" means an employee of the division, other than a surface mining reclamation supervisor, inspector or inspector-in-training, appointed by the director to issue proposed penalty assessments and to conduct informal conferences to review notices, orders and proposed penalty assessments.

(g) "Breakthrough" means the release of water which has been trapped or impounded, or the release of air into any underground cavity, pocket or area as a result of surface mining operations.

(h) "Coal processing wastes" means earth materials which are or have been combustible, physically unstable or acid-forming or toxic-forming, which are wasted or otherwise separated from product coal, and slurried or otherwise transported from coal processing plants after physical or chemical processing, cleaning or concentrating of coal.

(i) "Director" means the Director of the Division of Environmental Protection or other person to whom the director has delegated authority or duties pursuant to sections six or eight, article one of this chapter.

(j) "Disturbed area" means an area where vegetation, topsoil or overburden has been removed or placed by surface mining operations, and reclamation is incomplete.

(k) "Division" means the Division of Environmental Protection.

(l) "Imminent danger to the health or safety of the public" means the existence of a condition or practice, or any violation of a permit or other requirement of this article, which condition, practice or violation could reasonably be expected to cause substantial physical harm or death to any person outside the permit area before the condition, practice or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose the person to the danger during the time necessary for the abatement.

(m) "Minerals" means clay, coal, flagstone, gravel, limestone, manganese, sand, sandstone, shale, iron ore and any other metal or metallurgical ore.

(n) "Operation" means those activities conducted by an operator who is subject to the jurisdiction of this article.

(o) "Operator" means any person who is granted or who should obtain a permit to engage in any activity covered by this article and any rule promulgated under this article and includes any person who engages in surface mining or surface mining and reclamation operations, or both. The term shall also be construed in a manner consistent with the federal program pursuant to the federal Surface Mining Control and Reclamation Act of 1977, as amended.

(p) "Permit" means a permit to conduct surface mining operations pursuant to this article.

(q) "Permit area" means the area of land indicated on the approved proposal map submitted by the operator as part of the operator's application showing the location of perimeter markers and monuments and shall be readily identifiable by appropriate markers on the site.

(r) "Permittee" means a person holding a permit issued under this article.

(s) "Person" means any individual, partnership, firm, society, association, trust, corporation, other business entity or any agency, unit or instrumentality of federal, state or local government.

(t) "Prime farmland" has the same meaning as that prescribed by the United States secretary of agriculture on the basis of such factors as moisture availability, temperature regime, chemical balance, permeability, surface layer composition, susceptibility to flooding and erosion characteristics and which historically have been used for intensive agricultural purposes and as published in the federal register.

(u) "Surface mine", "surface mining" or "surface mining operations" means:

(1) Activities conducted on the surface of lands for the removal of coal, or, subject to the requirements of section fourteen of this article, surface operations and surface impacts incident to an underground coal mine, including the drainage and discharge from the mine. The activities include: Excavation for the purpose of obtaining coal, including, but not limited to, common methods as contour, strip, auger, mountaintop removal, box cut, open pit and area mining; the uses of explosives and blasting; reclamation; in situ distillation or retorting, leaching or other chemical or physical processing; the cleaning, concentrating or other processing or preparation and loading of coal for commercial purposes at or near the mine site; and

(2) The areas upon which the above activities occur or where the activities disturb the natural land surface. The areas also include any adjacent land, the use of which is incidental to the activities; all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of the activities and for haulage; and excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to the activities: Provided, That the activities do not include the extraction of coal incidental to the extraction of other minerals where coal does not exceed sixteen and two-thirds percent of the tonnage of minerals removed for purposes of commercial use or sale, or coal prospecting subject to section seven of this article. Surface mining does not include any of the following:

(i) Coal extraction authorized pursuant to a government-financed reclamation contract;

(ii) Coal extraction authorized as an incidental part of development of land for commercial, residential, industrial or civic use; or

(iii) The reclamation of an abandoned or forfeited mine by a no cost reclamation contract.

(v) "Underground mine" means the surface effects associated with the shaft, slopes, drifts or inclines connected with excavations penetrating coal seams or strata and the equipment connected therewith which contribute directly or indirectly to the mining, preparation or handling of coal.

(w) "Significant, imminent environmental harm to land, air or water resources" means the existence of any condition or practice, or any violation of a permit or other requirement of this article, which condition, practice or violation could reasonably be expected to cause significant and imminent environmental harm to land, air or water resources. The term "environmental harm" means any adverse impact on land, air or water resources, including, but not limited to, plant, wildlife and fish, and the environmental harm is imminent if a condition or practice exists which is causing the harm or may reasonably be expected to cause the harm at any time before the end of the abatement time set by the director. An environmental harm is significant if that harm is appreciable and not immediately repairable.

(x) "Unanticipated event or condition" as used in section eighteen of this article means an event or condition in a remining operation that was not contemplated by the applicable surface coal mining and reclamation permit.

(y) "Lands eligible for remining" means those lands that would be eligible for expenditures under section four, article two of this chapter. Surface mining operations on lands eligible for remining do not affect the eligibility of the lands for reclamation and restoration under article two of this chapter. In event the bond or deposit for lands eligible for remining is forfeited, funds available under article two of this chapter may be used to provide for adequate reclamation or abatement. However, if conditions constitute an emergency as provided in section 410 of the federal Surface Mining Control and Reclamation Act of 1977, as amended, then those federal provisions apply.

(z) "Replacement of water supply" means, with respect to water supplies, contaminated, diminished or interrupted provision of water supply on both a temporary and permanent basis of equivalent quality and quantity. Replacement includes provision of an equivalent water delivery system and payment of operation and maintenance cost in excess of customary and reasonable delivery cost for the replaced water supplies.

Upon agreement by the permittee and the water supply owner, the obligation to pay the costs may be satisfied by a one-time payment in an amount which covers the present annual operation and maintenance costs for a period agreed to by the permittee and the water supply owner.

§22-3-4. Reclamation; duties and functions of secretary.

(a) The secretary shall administer the provisions of this article relating to surface-mining operations. The  secretary has within his or her jurisdiction and supervision all lands and areas of the State, mined or susceptible of being mined, for the removal of coal and all other lands and areas of the State deforested, burned over, barren or otherwise denuded, unproductive and subject to soil erosion and waste. Included within  the lands and areas are lands seared and denuded by chemical operations and processes, abandoned coal mining areas, swamplands, lands and areas subject to flowage easements and backwaters from river locks and dams, and river, stream, lake and pond shore areas subject to soil erosion and waste. The jurisdiction and supervision exercised by the secretary shall be consistent with other provisions of this chapter.

(b) The secretary may:

(1)  Propose rules for promulgation, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article: Provided, That the  secretary shall give notice by publication of the public hearing required in article three, chapter twenty-nine-a of this code: Provided, however, That any forms, handbooks or similar materials having the effect of a rule as defined in article three, chapter twenty-nine-a of this code were issued, developed or distributed by the director pursuant to or as a result of a rule are subject to the provisions of article three, chapter twenty-nine-a of this code;

(2) Make investigations or inspections necessary to ensure complete compliance with the provisions of this code;

(3) Conduct hearings or appoint persons to conduct hearings under provisions of this article or rules adopted by the  secretary; and for the purpose of any investigation or hearing  under this article, the  secretary or his or her designated representative, may administer oaths or affirmations, subpoena witnesses, compel their attendance, take evidence and require production of any books, papers, correspondence, memoranda, agreements or other documents or records relevant or material to the inquiry;

(4) Enforce the provisions of this article as provided in this article;

(5) Appoint such advisory committees as may be of assistance to the secretary in the development of programs and policies: Provided, That such advisory committees shall, in each instance, include members representative of the general public; and

(6) In relation to blasting on all surface-mining operations and all surface-blasting activities related to underground mining operations:

(A) Regulate blasting on all surface-mining operations;

(B) Implement and oversee the preblast survey process, as set forth in section thirteen-a, article three of this chapter;

(C) Maintain and operate a system to receive and address questions, concerns and complaints relating to mining operations;

(D) Set the qualifications for individuals and firms performing preblast surveys;

(E) Educate, train, examine and certify blasters; and

(F) Propose rules for legislative approval pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code for the implementation of sections thirty-four through thirty-nine of this article.

(c)(1) After the secretary has adopted the rules required by this article, any person may petition the secretary to initiate a proceeding for the issuance, amendment or appeal of a rule under this article.

(2) The petition shall be filed with the secretary and shall set forth the facts which support the issuance, amendment or appeal of a rule under this article.

(3) The secretary may hold a public hearing or may conduct such investigation or proceeding as he or she considers appropriate in order to determine whether the petition should be granted or denied.

(4) Within ninety days after filing of a petition described in subdivision (1) of this subsection, the secretary shall either grant or deny the petition. If the secretary grants the petition, he or she shall promptly commence an appropriate proceeding in accordance with the provisions of chapter twenty-nine-a of this code. If the secretary denies the petition, he or she shall notify the petitioner in writing setting forth the reasons for the denial.

§22-3-5. Surface mining reclamation supervisors and inspectors; appointment and qualifications; salary.

The director shall determine the number of surface mining reclamation supervisors and inspectors needed to carry out the purposes of this article and appoint them as such. All such appointees shall be qualified civil service employees, but no person is eligible for such appointment until he or she has served in a probationary status for a period of six months to the satisfaction of the director.

Every surface mining reclamation supervisor shall be paid not less than $30,000 per year. Every surface mining reclamation inspector shall be paid not less than $25,000 per year.

§22-3-6. Duties of surface mining reclamation inspectors and inspectors in training.

Except as otherwise provided in this article, surface mining reclamation inspectors and inspectors in training shall make all necessary surveys and inspections of surface mining operations required by the provisions of this article, shall administer and enforce all surface mining laws and rules and shall perform such other duties and services as may be prescribed by the director. Such inspectors shall give particular attention to all conditions of each permit to ensure complete compliance therewith. Such inspectors shall note and describe all violations of this article and immediately report such violations to the director in writing, furnishing at the same time a copy of such report to the operator concerned.

§22-3-7. Notice of intention to prospect, requirements therefor; bonding; secretary's authority to deny or limit; postponement of reclamation; prohibited acts; exceptions.

(a) Any person intending to prospect for coal in an area not covered by a surface-mining permit, in order to determine the location, quantity or quality of a natural coal deposit, making feasibility studies or for any other purpose, shall file with the secretary, at least fifteen days prior to commencement of any disturbance associated with prospecting, a notice of intention to prospect, which notice shall include a description of the prospecting area, the period of supposed prospecting and any other information as required by rules promulgated pursuant to this section: Provided, That prior to the commencement of prospecting, the secretary may issue an order denying or limiting permission to prospect where the secretary finds that prospecting operations will damage or destroy a unique natural area, or will cause serious harm to water quality, or that the operator has failed to satisfactorily reclaim other prospecting sites, or that there has been an abuse of prospecting by previous prospecting operations in the area.

(b) Notice of intention to prospect shall be made in writing on forms prescribed by the secretary and shall be signed and verified by the applicant. The notice shall be accompanied by: (1) A United States Geological Survey topographic map showing by proper marking the crop line and the name, where known, of the seam or seams to be prospected; (2) a filing fee of $2000; and (3) a bond, or cash, or collateral securities or certificates of the same type and form and in the same manner as provided in section eleven of this article, in the amount of five hundred dollars per acre or fraction thereof for the total estimated disturbed area. If a bond is used, it shall be payable to the State of West Virginia and conditioned that the operator faithfully perform the requirements of this article as they relate to backfilling and revegetation of the disturbed area.

(c) Any person prospecting under the provisions of this section shall ensure that the prospecting operation is conducted in accordance with the performance standards in section thirteen of this article for all lands disturbed in explorations, including excavations, roads, drill holes, and the removal of necessary facilities and equipment.

(d) Information submitted to the secretary pursuant to this section as confidential, concerning trade secrets or privileged commercial or financial information, which relates to the competitive rights of the person or entity intended to prospect the described area, is not available for public examination.

(e) Any person who conducts any prospecting activities which substantially disturb the natural land surface in violation of this section or rules issued pursuant thereto is subject to the provisions of sections sixteen and seventeen of this article.

(f) An operator may not remove more than two hundred fifty tons of coal without the specific written approval of the secretary. Such approval shall be requested by the operator on forms prescribed by the secretary. The secretary shall promulgate rules governing such operations and setting forth information required in the application for approval. Each such application shall be accompanied by a $2000 filing fee.

(g) The bond accompanying said notice of intention to prospect shall be released by the secretary when the operator demonstrates that a permanent species of vegetative cover is established.

(h) If an operator desires to mine the area currently being prospected, and has requested and received an appropriate surface mine application (S.M.A.) number, the secretary may permit the postponement of the reclamation of the area prospected. Any part of a prospecting operation, where reclamation has not been postponed as provided above, shall be reclaimed within a period of three months from disturbance.

(i) For the purpose of this section, the word "prospect" or "prospecting" does not include core drilling related solely to taxation or highway construction.

§22-3-8. Prohibition of surface mining without a permit; permit requirements; successor in interest; duration of permits; proof of insurance; termination of permits; permit fees.

(a) No person may engage in surface mining operations unless he or she has first obtained a permit from the secretary in accordance with the following:

(1) All permits issued pursuant to the requirements of this article shall be issued for a term not to exceed five years: Provided, That if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation, and if the application is full and complete for the specified longer term, the secretary may extend a permit for a longer term: Provided, however, That subject to the prior approval of the secretary, with the approval being subject to the provisions of subsection (c), section eighteen of this article, a successor in interest to a permittee who applies for a new permit, or transfer of a permit, within thirty days of succeeding to the interest and who is able to obtain the bond coverage of the original permittee, may continue surface mining and reclamation operations according to the approved mining and reclamation plan of the original permittee until the successor's permit application or application for transfer is granted or denied.

(2) Proof of insurance is required on an annual basis.

(3) A permit terminates if the permittee has not commenced the surface mining operations covered by the permit within three years of the date the permit was issued: Provided, That the secretary may grant reasonable extensions of time upon a timely showing that the extensions are necessary by reason of litigation precluding commencement, or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee: Provided, however, That with respect to coal to be mined for use in a synthetic fuel facility or specific major electric-generating facility, the permittee shall be considered to have commenced surface mining operations at the time the construction of the synthetic fuel or generating facility is initiated.

(4) Each application for a new surface mining permit filed pursuant to this article shall be accompanied by a fee of $3,500. All permit fees and renewal fees provided in this section or elsewhere in this article shall be collected by the secretary and deposited with the Treasurer of the State of West Virginia to the credit of the Operating Permit Fees Fund and shall be used, upon requisition of the secretary, for the administration of this article.

(5) Prior to the issuance of any permit, the secretary shall ascertain from the Commissioner of the Division of Labor whether the applicant is in compliance with section fourteen, article five, chapter twenty-one of this code. Upon issuance of the permit, the secretary shall forward a copy to the Commissioner of the Division of Labor, who shall assure continued compliance under the permit.

(6)(A) Prior to the issuance of any permit the secretary shall ascertain from the Executive Director of Workforce West Virginia and the Insurance Commissioner whether the applicant is in compliance with the provisions of section six-c, article two, chapter twenty-one-a of this code and section five, article two, chapter twenty-three of this code with regard to any required subscription to the Unemployment Compensation Fund or to the Workers' Compensation Fund, the payment of premiums and other charges to the fund, the timely filing of payroll reports and the maintenance of adequate deposits. If the applicant is delinquent or defaulted, or has been terminated by the executive director or the Insurance Commissioner, the permit may not be issued until the applicant returns to compliance or is restored by the executive director or the Insurance Commissioner under a reinstatement agreement: Provided, That in all inquiries the Executive Director of Workforce West Virginia and the Insurance Commissioner shall make response to the Department of Environmental Protection within fifteen calendar days; otherwise, failure to respond timely is considered to indicate the applicant is in compliance and the failure will not be used to preclude issuance of the permit.

(B) It is a requirement of this article that each operator maintain continued compliance with the provisions of section five, article two, chapter twenty-three of this code and section six-c, article two, chapter twenty-one-a of this code and provide proof of compliance to the secretary on a quarterly basis.

§22-3-9. Permit application requirements and contents.

(a) The surface mining permit application shall contain:

(1) The names and addresses of: (A) The permit applicant; (B) the owner of record of the property, surface, and mineral to be mined; (C) the holders of record of any leasehold interest in the property; (D) any purchaser of record of the property under a real estate contract; (E) the operator, if different from the applicant; and (F) if any of these are business entities other than a single proprietor, the names and addresses of the principals, officers, and resident agent;

(2) The names and addresses of the owners of record of all surface and subsurface areas contiguous to any part of the proposed permit area: Provided, That all residents living on property contiguous to the proposed permit area shall be notified by the applicant, by registered or certified mail, of such application on or before the first day of publication of the notice provided for in §22-3-9(a)(6) of this code;

(3) A statement of any current surface mining permits held by the applicant in the state and the permit number and each pending application;

(4) If the applicant is a partnership, corporation, association, or other business entity, the following where applicable: The names and addresses of every officer, partner, resident agent, director or person performing a function similar to a director, together with the names and addresses of any person owning of record 10 percent or more of any class of voting stock of the applicant; and a list of all names under which the applicant, officer, director, partner, or principal shareholder previously operated a surface mining operation in the United States within the five-year period preceding the date of submission of the application;

(5) A statement of whether the applicant, or any officer, partner, director, principal shareholder of the applicant, any subsidiary, affiliate, or persons controlled by or under common control with the applicant, has ever been an officer, partner, director, or principal shareholder in a company which has ever held a federal or state mining permit which in the five-year period prior to the date of submission of the application has been permanently suspended or revoked or has had a mining bond or similar security deposited in lieu of bond forfeited and, if so, a brief explanation of the facts involved;

(6) A copy of the applicant’s advertisement to be published in a newspaper of general circulation in the locality of the proposed permit area at least once a week for four successive weeks on a form and in a manner prescribed by the secretary, which manner may be electronic. The advertisement shall contain, in abbreviated form, the information required by this section including the ownership and map of the tract location and boundaries of the proposed site so that the proposed operation is readily locatable by local residents, the location of the office of the department where the application is available for public inspection, and stating that written protests will be accepted by the secretary until a certain date which is at least 30 days after the last publication of the applicant’s advertisement;

(7) A description of the type and method of surface mining operation that exists or is proposed, the engineering techniques used or proposed, and the equipment used or proposed to be used;

(8) The anticipated starting and termination dates of each phase of the surface mining operation and the number of acres of land to be affected;

(9) A description of the legal documents upon which the applicant’s legal right to enter and conduct surface mining operations on the proposed permit area is based and whether that right is the subject of pending court litigation: Provided, That nothing in this article may be construed as vesting in the secretary the jurisdiction to adjudicate property-rights disputes;

(10) The name of the watershed and location of the surface stream or tributary into which surface and pit drainage will be discharged;

(11) A determination of the probable hydrologic consequences of the mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime, quantity and quality of water in surface and groundwater systems, including the dissolved and suspended solids under seasonal flow conditions and the collection of sufficient data for the mine site and surrounding areas so that an assessment can be made by the secretary of the probable cumulative impacts of all anticipated mining in the area upon the hydrology of the area, and particularly upon water availability: Provided, That this determination is not required until the time hydrologic information on the general area prior to mining is made available from an appropriate federal or state agency or, if existing and in the possession of the applicant, from the applicant: Provided, however, That the permit application shall not be approved until the information is available and is incorporated into the application;

(12) Accurate maps to an appropriate scale clearly showing: (A) The land to be affected as of the date of application; (B) the area of land within the permit area upon which the applicant has the legal right to enter and conduct surface mining operations; and (C) all types of information set forth on enlarged topographical maps of the United States geological survey of a scale of 1:24,000 or larger, including all man-made features and significant known archaeological sites existing on the date of application. In addition to other things specified by the secretary, the map shall show the boundary lines and names of present owners of record of all surface areas abutting the proposed permit area and the location of all structures within 1,000 feet of the proposed permit area;

(13) Cross-section maps or plans of the proposed affected area, including the actual area to be mined, prepared by, or under the direction of, and certified by a person approved by the secretary, showing pertinent elevation and location of test borings or core samplings, where required by the secretary, and depicting the following information: (A) The nature and depth of the various strata or overburden; (B) the location of subsurface water, if encountered, and its quality; (C) the nature and thickness of any coal or rider seams above the seam to be mined; (D) the nature of the stratum immediately beneath the coal seam to be mined; (E) all mineral crop lines and the strike and dip of the coal to be mined, within the area of land to be affected; (F) existing or previous surface mining limits; (G) the location and extent of known workings of any underground mines, including mine openings to the surface; (H) the location of any significant aquifers; (I) the estimated elevation of the water table; (J) the location of spoil, waste, or refuse areas and topsoil preservation areas; (K) the location of all impoundments for waste or erosion control; (L) any settling or water treatment facility or drainage system; (M) constructed or natural drainways and the location of any discharges to any surface body of water on the area of land to be affected or adjacent thereto; and (N) adequate profiles at appropriate cross sections of the anticipated final surface configuration that will be achieved pursuant to the operator’s proposed reclamation plan;

(14) A statement of the result of test borings or core samples from the permit area, including: (A) Logs of the drill holes; (B) the thickness of the coal seam to be mined and analysis of the chemical and physical properties of the coal; (C) the sulfur content of any coal seam; (D) chemical analysis of potentially acid or toxic forming sections of the overburden; and (E) chemical analysis of the stratum lying immediately underneath the coal to be mined: Provided, That the provisions of this subdivision may be waived by the secretary with respect to the specific application by a written determination that such requirements are unnecessary;

(15) For those lands in the permit application which a reconnaissance inspection suggests may be prime farmlands, a soil survey shall be made or obtained according to standards established by the Commissioner of Agriculture in order to confirm the exact location of the prime farmlands;

(16) A reclamation plan as presented in §22-3-10 of this code;

(17) Information pertaining to coal seams, test borings, core samplings, or soil samples as required by this section shall be made available to any person with an interest who is or may be adversely affected: Provided, That information which pertains only to the analysis of the chemical and physical properties of the coal, except information regarding mineral or elemental content which is potentially toxic to the environment, shall be kept confidential and not made a matter of public record;

(18) When requested by the secretary, the climatological factors that are peculiar to the locality of the land to be affected, including the average seasonal precipitation, the average direction and velocity of prevailing winds, and the seasonal temperature ranges; and

(19) Other information that may be required by rules reasonably necessary to effectuate the purposes of this article.

(b) If the secretary finds that the probable total annual production at all locations of any coal surface mining operator will not exceed 300,000 tons, the determination of probable hydrologic consequences including the engineering analyses and designs necessary as required by this article or rules promulgated thereunder; the development of cross-section maps and plans as required by this article or rules promulgated thereunder; the geologic drilling and statement of results of test borings and core samplings as required by this article or rules promulgated thereunder; preblast surveys required by this article or rules promulgated thereunder; the collection of site-specific resource information and production of protection and enhancement plans for fish and wildlife habitats and other environmental values required by this article or rules promulgated thereunder; and the collection of archaeological and historical information required by this article and rules promulgated thereunder and any other archaeological and historical information required by the federal Department of the Interior and the preparation of plans that may be necessitated thereby shall, upon the written request of the operator, be performed by a qualified public or private laboratory designated by the secretary and a reasonable cost of the preparation of the determination and statement shall be assumed by the department from funds provided by the United States Department of the Interior pursuant to the federal Surface Mining Control and Reclamation Act of 1977, as amended.

(c) Before the first publication of the applicant’s advertisement as provided in this section, each applicant for a surface mining permit shall file, except for that information pertaining to the coal seam itself, a copy of the application for public inspection in the nearest office of the department as specified in the applicant’s advertisement.

(d) Each applicant for a permit shall be required to submit to the secretary as a part of the permit application a certificate issued by an insurance company authorized to do business in this state covering the surface mining operation for which the permit is sought, or evidence that the applicant has satisfied state self-insurance requirements. The policy shall provide for personal injury and property damage protection in an amount adequate to compensate any persons damaged as a result of surface coal mining and reclamation operations, including use of explosives, and entitled to compensation under the applicable provisions of state law. The policy shall be maintained in full force and effect during the terms of the permit or any renewal, including the length of all reclamation operations.

(e) Each applicant for a surface mining permit shall submit to the secretary as part of the permit application a blasting plan where explosives are to be used, which shall outline the procedures and standards by which the operator will meet the provisions of the blasting performance standards.

(f) The applicant shall file, as part of the permit application, a schedule listing all notices of violation, bond forfeitures, permit revocations, cessation orders, or permanent suspension orders resulting from a violation of the federal Surface Mining Control and Reclamation Act of 1977, as amended, this article or any law or regulation of the United States or any department or agency of any state pertaining to air or environmental protection received by the applicant in connection with any surface mining operation during the three-year period prior to the date of application, and indicating the final resolution of any notice of violation, forfeiture, revocation, cessation, or permanent suspension.

(g) Within five working days of receipt of an application for a permit, the secretary shall notify the operator in writing, stating whether the application is administratively complete and whether the operator’s advertisement may be published. If the application is not administratively complete, the secretary shall state in writing why the application is not administratively complete.

§22-3-10. Reclamation plan requirements.

(a) Each reclamation plan submitted as part of a surface mining permit application shall include, in the degree of detail necessary to demonstrate that reclamation required by this article can be accomplished, a statement of:

(1) The identification of the lands subject to surface mining over the estimated life of these operations and the size, sequence and timing of the operations for which it is anticipated that individual permits for mining will be sought;

(2) The condition of the land to be covered by the permit prior to any mining, including: (A) The uses existing at the time of the application and, if the land has a history of previous mining, the uses which preceded any mining; (B) the capability of the land prior to any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography and vegetation cover and, if applicable, a soil survey prepared pursuant to subdivision (15), subsection (a), section nine of this article; and (C) the best information available on the productivity of the land prior to mining, including appropriate classification as prime farmlands and the average yield of food, fiber, forage or wood products from the lands obtained under high levels of management;

(3) The use which is proposed to be made of the land following reclamation, including a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses, including, but not limited to, renewable and alternative energy uses, residential uses, highway uses, industrial uses, commercial uses, agricultural uses, public facility uses or recreational facility uses, and the relationship of the use to existing land use policies and plans and the comments of any owner of the surface, other state agencies and local governments which would have to initiate, implement, approve or authorize the proposed use of the land following reclamation;

(A) The post-mining land use proposed in any reclamation plan for lands proposed to be mined by surface mining methods shall comport with the land use that is specified in the approved master land use plan for the area as provided in section nine, article two-a, chapter five-b of this code: Provided, That the secretary may approve an alternative post-mining land use where the applicant demonstrates that:

(i) The proposed post-mining land use is a higher and better use than the land use specified in the approved master land use plan;

(ii) Site-specific conditions make attainment of a post-mining land use which comports with the land use that is specified in the approved master land use plan for the area impractical; or

(iii) The post-mining land use specified in the approved master land use plan would substantially interfere with the future extraction of a mineable coal bed, as that term is defined in rules promulgated by the Tax Commissioner relating to the valuation of active or reserve coal property for ad valorem property tax purposes, 110 C.S.R. 1I-3 or a successor rule, from the land to be mined.

(B) Existing permits with approved reclamation plans may be modified by the operator through an appropriate permit revision to include a post-mining land use which comports with the land use that is specified in the approved master land use plan for the area as provided in section nine, article two-a, chapter five-b of this code;

(C) By complying with a master land use plan that has been approved in accordance with article two-a, chapter five-b of this code, a post-mining land use satisfies the requirements for an alternative post-mining land use and satisfies the variance requirements set forth in subsection (c), section thirteen, article three, chapter twenty-two of this code if applicable to the proposed use;

(4) A detailed description of how the proposed post-mining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use;

(5) The engineering techniques proposed to be used in mining and reclamation and a description of the major equipment; a plan for the control of surface water drainage and of water accumulation; a plan, where appropriate, for backfilling, soil stabilization and compacting, grading, revegetation and a plan for soil reconstruction, replacement and stabilization pursuant to the performance standards in subdivision (7), subsection (b), section thirteen of this article for those food, forage and forest lands identified therein; and a statement as to how the operator plans to comply with each of the applicable requirements set out in section thirteen or fourteen of this article;

(6) A detailed estimated timetable for the accomplishment of each major step in the reclamation plan;

(7) The consideration which has been given to conducting surface mining operations in a manner consistent with surface owner plans and applicable state and local land use plans and programs;

(8) The steps to be taken to comply with applicable air and water quality laws and rules and any applicable health and safety standards;

(9) The consideration which has been given to developing the reclamation plan in a manner consistent with local physical environmental and climatological conditions;

(10) All lands, interests in lands or options on the interests held by the applicant or pending bids on interests in lands by the applicant, which lands are contiguous to the area to be covered by the permit;

(11) A detailed description of the measures to be taken during the surface mining and reclamation process to assure the protection of:

(A) The quality of surface and groundwater systems, both on and off site, from adverse effects of the surface mining operation;

(B) The rights of present users to the water; and

(C) The quantity of surface and groundwater systems, both on and off site, from adverse effects of the surface mining operation or to provide alternative sources of water where the protection of quantity cannot be assured;

(12) The results of tests borings which the applicant has made at the area to be covered by the permit or other equivalent information and data in a form satisfactory to the director, including the location of subsurface water and an analysis of the chemical properties, including acid-forming properties of the mineral and overburden: Provided, That information which pertains only to the analysis of the chemical and physical properties of the coal, except information regarding the mineral or elemental contents which are potentially toxic in the environment, shall be kept confidential and not made a matter of public record;

(13) The consideration which has been given to maximize the utilization and conservation of the solid fuel resource being recovered so that reaffecting the land in the future can be minimized; and

(14) Any other requirements as the director may prescribe by rule.

(b) A reclamation plan pending approval as of the effective date of this section may be amended by the operator to provide for a post-mining land use that comports with a master land use plan that has been approved in accordance with article two-a, chapter five-b of this code.

(c) The reclamation plan shall be available to the public for review except for those portions thereof specifically exempted in subsection (a) of this section.

(d) The amendments to this section by the first extraordinary session of the Legislature in 2009 are effective upon the approval of the corresponding amendments to West Virginia's state program, as that term is defined in the federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §1291, by the federal Office of Surface Mining Reclamation and Enforcement.

§22-3-11. Bonds; amount and method of bonding; bonding requirements; special reclamation tax and funds; prohibited acts; period of bond liability.

(a) After a surface mining permit application has been approved pursuant to this article, but before a permit has been issued, each operator shall furnish a penal bond, on a form to be prescribed and furnished by the secretary, payable to the State of West Virginia and conditioned upon the operator faithfully performing all of the requirements of this article and of the permit. The penal amount of the bond shall be not less than $1,000 nor more than $5,000 for each acre or fraction of an acre: Provided, That the minimum amount of bond furnished for any type of reclamation bonding shall be $10,000. The bond shall cover: (1) The entire permit area; or (2) that increment of land within the permit area upon which the operator will initiate and conduct surface mining and reclamation operations within the initial term of the permit. If the operator chooses to use incremental bonding, as succeeding increments of surface mining and reclamation operations are to be initiated and conducted within the permit area, the operator shall file with the secretary an additional bond or bonds to cover the increments in accordance with this section: Provided, however, That once the operator has chosen to proceed with bonding either the entire permit area or with incremental bonding, the operator shall continue bonding in that manner for the term of the permit.

(b) The period of liability for bond coverage begins with issuance of a permit and continues for the full term of the permit plus any additional period necessary to achieve compliance with the requirements in the reclamation plan of the permit.

(c)(1) The form of the bond shall be approved by the secretary and may include, at the option of the operator, surety bonding, collateral bonding (including cash and securities), establishment of an escrow account, self bonding or a combination of these methods. If collateral bonding is used, the operator may elect to deposit cash or collateral securities or certificates as follows: Bonds of the United States or its possessions of the Federal Land Bank or of the Homeowners’ Loan Corporation; full faith and credit general obligation bonds of the State of West Virginia or other states and of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the department. The cash deposit or market value of the securities or certificates shall be equal to or greater than the penal sum of the bond. The secretary shall, upon receipt of any deposit of cash, securities, or certificates, promptly place the same with the Treasurer of the State of West Virginia whose duty it is to receive and hold the deposit in the name of the state in trust for the purpose for which the deposit is made when the permit is issued. The operator making the deposit is entitled, from time to time, to receive from the State Treasurer, upon the written approval of the secretary, the whole or any portion of any cash, securities, or certificates so deposited, upon depositing with him or her in lieu thereof cash or other securities or certificates of the classes specified in this subsection having value equal to or greater than the sum of the bond.

(2) The secretary may approve an alternative bonding system if it will: (A) Reasonably assure that sufficient funds will be available to complete the reclamation, restoration and abatement provisions for all permit areas which may be in default at any time; and (B) provide a substantial economic incentive for the permittee to comply with all reclamation provisions.

(d) The secretary may accept the bond of the applicant itself without separate surety when the applicant demonstrates to the satisfaction of the secretary the existence of a suitable agent to receive service of process and a history of financial solvency and continuous operation sufficient for authorization to self insure.

(e) It is unlawful for the owner of surface or mineral rights to interfere with the present operator in the discharge of the operator’s obligations to the state for the reclamation of lands disturbed by the operator.

(f) All bond releases shall be accomplished in accordance with §22-3-23 of this code.

(g)(1) The Special Reclamation Fund previously created is continued. The Special Reclamation Water Trust Fund is created within the state treasury into and from which moneys shall be paid for the purpose of assuring a reliable source of capital and operating expenses for the treatment of water discharges from forfeited sites where the secretary has obtained or applied for an NPDES permit as of the effective date of this article. The moneys accrued in both funds, any interest earned thereon and yield from investments by the State Treasurer or West Virginia Investment Management Board are reserved solely and exclusively for the purposes set forth in this section and §22-1-17 of this code.

(2) The funds shall be administered by the secretary who is authorized to expend the moneys in both funds for the reclamation and rehabilitation of lands which were subjected to permitted surface mining operations and abandoned after August 3, 1977, where the amount of the bond posted and forfeited on the land is less than the actual cost of reclamation, and where the land is not eligible for abandoned mine land reclamation funds under §22-2-1 et seq. of this code. The secretary may also expend an amount not to exceed 10 percent of the total annual assets in both funds to implement and administer the provisions of this article and, as they apply to the Surface Mine Board, §22B-1-1 et seq. and §22B-1-4 et seq. of this code.

(3)(A) A tax credit shall be granted against the tax imposed by subsection (i) of this section to any mine operator who performs reclamation or remediation at a bond forfeiture site which otherwise would have been reclaimed using funds from the Special Reclamation Fund or Special Reclamation Water Trust Fund. The credit authorized pursuant to this subdivision is retroactive and may be claimed for reclamation or remediation performed on or after January 1, 2012: Provided, That for reclamation or remediation performed prior to July 13, 2013, no tax credit may be granted unless a written application for the tax credit was submitted to the Tax Commissioner prior to September 1, 2014. The amount of credit shall be determined as provided in this section.

(B) The amount of a reclamation tax credit granted under this subsection shall be equal to the amount that the Tax Commissioner determines, based on the project costs, as shown in the records of the secretary, that would have been spent from the Special Reclamation Fund or Special Reclamation Water Trust Fund to accomplish the reclamation or remediation performed by the mine operator, including expenditures for water treatment.

(C) To claim the credit, the mine operator shall, from time to time, file with the Tax Commissioner a written application seeking the amount of the credit earned. Within 30 days of receipt of the application, the Tax Commissioner shall issue a certification of the amount of tax credit, if any, to be allocated to the eligible taxpayer. Should the amount of the credit certified be less than the amount applied for, the Tax Commissioner shall set forth in writing the reason for the difference. Should no certification be issued within the 30-day period, the application shall be considered certified. Any decision by the Tax Commissioner is appealable pursuant to the provisions of the West Virginia Tax Procedure and Administration Act set forth in §11-10-1 et seq. of this code. Applications for certification of the proposed tax credit shall contain the information and be in the detail and form as required by the Tax Commissioner.

(h) The Tax Commissioner may promulgate rules for legislative approval pursuant to §29A-3-1 et seq. of this code to carry out the purposes of this subdivision two, subsection (g) of this section.

(i)(1) Rate, deposits, and review.

(A) For tax periods commencing on and after July 1, 2009, every person conducting coal surface mining shall remit a special reclamation tax of 14 and four-tenths cents per ton of clean coal mined, the proceeds of which shall be allocated by the secretary for deposit in the Special Reclamation Fund and the Special Reclamation Water Trust Fund.

(B) For tax periods commencing on and after July 1, 2012, the rate of tax specified in paragraph (A) of this subdivision is discontinued and is replaced by the rate of tax specified in this paragraph. For tax periods commencing on and after July 1, 2012, every person conducting coal surface mining shall remit a special reclamation tax of 27 and nine-tenths cents per ton of clean coal mined, the proceeds of which shall be allocated by the secretary for deposit in the Special Reclamation Fund and the Special Reclamation Water Trust Fund. Of that amount, 15 cents per ton of clean coal mined shall be deposited into the Special Reclamation Water Trust Fund.

(C) The tax shall be levied upon each ton of clean coal severed or clean coal obtained from refuse pile and slurry pond recovery or clean coal from other mining methods extracting a combination of coal and waste material as part of a fuel supply.

(D) Beginning with the tax period commencing on July 1, 2009, and every two years thereafter, the special reclamation tax shall be reviewed by the Legislature to determine whether the tax should be continued: Provided, That the tax may not be reduced until the Special Reclamation Fund and Special Reclamation Water Trust Fund have sufficient moneys to meet the reclamation responsibilities of the state established in this section.

(2) In managing the special reclamation program, the secretary shall: (A) Pursue cost-effective alternative water treatment strategies; (B) conduct formal actuarial studies every two years and conduct informal reviews annually on the Special Reclamation Fund and Special Reclamation Water Trust Fund; and (C) develop and maintain a database to track existing reclamation liabilities (including water treatment) at coal mining operations in the state that were permitted after August 3, 1977. This information is to be updated on a quarterly basis beginning July 2022 to ensure that actuarial studies of the special reclamation fund and special reclamation water trust fund are informed by current data.

(3) Prior to December 31, 2008, the secretary shall:

(A) Determine the feasibility of creating an alternate program, on a voluntary basis, for financially sound operators by which those operators pay an increased tax into the Special Reclamation Fund in exchange for a maximum per-acre bond that is less than the maximum established in subsection (a) of this section;

(B) Determine the feasibility of creating an incremental bonding program by which operators can post a reclamation bond for those areas actually disturbed within a permit area, but for less than all of the proposed disturbance and obtain incremental release of portions of that bond as reclamation advances so that the released bond can be applied to approved future disturbance; and

(C) Determine the feasibility for sites requiring water reclamation by creating a separate water reclamation security account or bond for the costs so that the existing reclamation bond in place may be released to the extent it exceeds the costs of water reclamation.

(4) If the secretary determines that the alternative program, the incremental bonding program or the water reclamation account or bonding programs reasonably assure that sufficient funds will be available to complete the reclamation of a forfeited site and that the Special Reclamation Fund will remain fiscally stable, the secretary may propose legislative rules in accordance with §29A-3-1 et seq. of this code to implement an alternate program, a water reclamation account or bonding program or other funding mechanisms or a combination thereof.

(j) This special reclamation tax shall be collected by the Tax Commissioner in the same manner, at the same time and upon the same tonnage as the minimum severance tax imposed by §11-12B-1 et seq. of this code is collected: Provided, That under no circumstance may the special reclamation tax be construed to be an increase in either the minimum severance tax imposed by that article or the severance tax imposed by §11-13-1 et seq. of this code.

(k) Every person liable for payment of the special reclamation tax shall pay the amount due without notice or demand for payment.

(l) The Tax Commissioner shall provide to the secretary a quarterly listing of all persons known to be delinquent in payment of the special reclamation tax. The secretary may take the delinquencies into account in making determinations on the issuance, renewal, or revision of any permit.

(m) The Tax Commissioner shall deposit the moneys collected with the Treasurer of the State of West Virginia to the credit of the Special Reclamation Fund and Special Reclamation Water Trust Fund.

(n) At the beginning of each quarter, the secretary shall advise the Tax Commissioner and the Governor of the assets, excluding payments, expenditures, and liabilities, in both funds.

(o) To the extent that this section modifies any powers, duties, functions, and responsibilities of the department that may require approval of one or more federal agencies or officials in order to avoid disruption of the federal-state relationship involved in the implementation of the federal Surface Mining Control and Reclamation Act, 30 U. S. C. § 1270 by the state, the modifications will become effective upon the approval of the modifications by the appropriate federal agency or official.

§22-3-11a. Special reclamation tax; clarification of imposition of tax; procedures for collection and administration of tax; application of Tax Procedure and Administration Act and Tax Crimes and Penalties Act.

(a) It is the intent of the Legislature to clarify that from the date of its enactment, the special reclamation tax imposed pursuant to the provisions of section eleven of this article is intended to be in addition to any other taxes imposed on persons conducting coal surface mining operations including, but not limited to the tax imposed by section thirty-two of this article, the tax imposed by article twelve-b, chapter eleven of this code, the taxes imposed by article thirteen-a of said chapter eleven and the tax imposed by article thirteen-v of said chapter.

(b) Notwithstanding any other provisions of section eleven of this article to the contrary, under no circumstance shall an exemption from the taxes imposed by article twelve-b, thirteen-a or thirteen-v, chapter eleven of this code be construed to be an exemption from the tax imposed by section eleven of this article.

(c) When coal included in the measure of the tax imposed by section eleven of this article is exempt from the tax imposed by article twelve-b, chapter eleven of this code, the tax imposed by section eleven of this article shall be paid to the Tax Commissioner in accordance with the provisions of sections four through fourteen, inclusive, article twelve-b, chapter eleven of this code, which provisions are hereby incorporated by reference in this article.

(d) General procedure and administration. –- Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten, chapter eleven of the code applies to the special tax imposed by section eleven of this article with like effect as if such act were applicable only to the special tax imposed by said section eleven and were set forth in extenso in this article, notwithstanding the provisions of section three of said article ten.

(e) Tax crimes and penalties. -– Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine of said chapter eleven applies to the special tax imposed by section eleven of this article with like effect as if such act were applicable only to the special tax imposed by said section eleven and set forth in extenso in this article, notwithstanding the provisions of section two of said article nine.

§22-3-12. Site-specific bonding; legislative rule; contents of legislative rule; legislative intent.

(a) Notwithstanding the provisions of section eleven of this article, the secretary may establish and implement a site-specific bonding system in accordance with the provisions of this section.

(b) A legislative rule proposed or promulgated pursuant to this section must provide, at a minimum, for the following:

(1) The penal amount of a bond shall be not less than $1,000 nor more than $5,000 per acre or fraction thereof.

(2) Every bond, subject to the limitations of subdivision (1) of this subsection, shall reflect the relative potential cost of reclamation associated with the activities proposed to be permitted, which would not otherwise be reflected by bonds calculated by merely applying a specific dollar amount per acre for the permit.

(3) Every bond, subject to the provisions of subdivision (1) of this subsection, shall also reflect an analysis under the legislative rule of various factors, as applicable, which affect the cost of reclamation, including, but not limited to: (A) The general category of mining, whether surface or underground; (B) mining techniques and methods proposed to be utilized; (C) support facilities, fixtures, improvements and equipment; (D) topography and geology; and (E) the potential for degrading or improving water quality.

(c) A legislative rule proposed or promulgated pursuant to the provisions of this section may, in addition to the requirements of subsection (b) of this section, provide for a consideration of other factors determined to be relevant by the secretary. For example, the rule may provide for the following:

(1) A consideration as to whether the bond relates to a new permit application, a renewal of an existing permit, an application for an incidental boundary revision or the reactivation of an inactive permit;

(2) A consideration of factors which may result in environmental enhancement, as in a case where remining may improve water quality or reduce or eliminate existing highwalls, or a permitted operation may create or improve wetlands; or

(3) An analysis of various factors related to the specific permit applicant, including, but not limited to: (A) The prior mining experience of the applicant with the activities sought to be permitted; and (B) the history of the applicant as it relates to prior compliance with statutory and regulatory requirements designed to protect, maintain or enhance the environment in this or any other state.

(d) It is the intent of the Legislature that a legislative rule proposed or promulgated pursuant to the provisions of this section shall be constructed so that when the findings of fact by the Division of Environmental Protection with respect to the proposed mining activity and the particular permit applicant coincide with the particular factors or criteria to be considered and analyzed under the rule, the rule will direct a conclusion as to the amount of the bond to be required, subject to rebuttal and refutation of the findings by the applicant. To the extent practicable, the rule shall limit subjectivity and discretion by the secretary and the division in fixing the amount of the bond.

§22-3-13. General environmental protection performance standards for surface mining; variances.

(a) Any permit issued by the secretary pursuant to this article to conduct surface mining operations shall require that the surface mining operations meet all applicable performance standards of this article and other requirements set forth in legislative rules proposed by the secretary.

(b) The following general performance standards are applicable to all surface mines and require the operation, at a minimum, to:

(1) Maximize the utilization and conservation of the solid fuel resource being recovered to minimize reaffecting the land in the future through surface mining;

(2) Restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better uses of which there is reasonable likelihood so long as the use or uses do not present any actual or probable hazard to public health or safety or pose any actual or probable threat of water diminution or pollution and the permit applicant’s declared proposed land use following reclamation is not considered to be impractical or unreasonable, inconsistent with applicable land use policies and plans, involves unreasonable delay in implementation or is violative of federal, state or local law;

(3) Except as provided in subsection (c) of this section, with respect to all surface mines, backfill, compact where advisable to ensure stability or to prevent leaching of toxic materials and grade in order to restore the approximate original contour: Provided, That in surface mining which is carried out at the same location over a substantial period of time where the operation transects the coal deposit and the thickness of the coal deposits relative to the volume of the overburden is large and where the operator demonstrates that the overburden and other spoil and waste materials at a particular point in the permit area or otherwise available from the entire permit area is insufficient, giving due consideration to volumetric expansion, to restore the approximate original contour, the operator, at a minimum, shall backfill, grade and compact, where advisable, using all available overburden and other spoil and waste materials to attain the lowest practicable grade, but not more than the angle of repose, to provide adequate drainage and to cover all acid-forming and other toxic materials in order to achieve an ecologically sound land use compatible with the surrounding region: Provided, however, That in surface mining where the volume of overburden is large relative to the thickness of the coal deposit and where the operator demonstrates that due to volumetric expansion the amount of overburden and other spoil and waste materials removed in the course of the mining operation is more than sufficient to restore the approximate original contour, the operator shall, after restoring the approximate contour, backfill, grade and compact, where advisable, the excess overburden and other spoil and waste materials to attain the lowest grade, but not more than the angle of repose, and to cover all acid-forming and other toxic materials in order to achieve an ecologically sound land use compatible with the surrounding region and the overburden or spoil shall be shaped and graded in a way as to prevent slides, erosion and water pollution and revegetated in accordance with the requirements of this article: Provided further, That the  secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code governing variances to the requirements for return to approximate original contour or highwall elimination and where adequate material is not available from surface mining operations permitted after the effective date of this article for: (A) Underground mining operations existing prior to August 3, 1977; or (B) for areas upon which surface mining prior to July 1, 1977, created highwalls;

(4) Stabilize and protect all surface areas, including spoil piles, affected by the surface mining operation to effectively control erosion and attendant air and water pollution;

(5) Remove the topsoil from the land in a separate layer, replace it on the backfill area or, if not utilized immediately, segregate it in a separate pile from other spoil and, when the topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, maintain a successful vegetative cover by quick growing plants or by other similar means in order to protect topsoil from wind and water erosion and keep it free of any contamination by other acid or toxic material: Provided, That if topsoil is of insufficient quantity or of poor quality for sustaining vegetation, or if other strata can be shown to be more suitable for vegetation requirements, then the operator shall remove, segregate and preserve in a like manner any other strata which is best able to support vegetation;

(6) Restore the topsoil or the best available subsoil which is best able to support vegetation;

(7) Ensure that all prime farmlands are mined and reclaimed in accordance with the specifications for soil removal, storage, replacement and reconstruction established by the United States Secretary of Agriculture and the Soil Conservation Service pertaining thereto. The operator, at a minimum, shall: (A) Segregate the A horizon of the natural soil, except where it can be shown that other available soil materials will create a final soil having a greater productive capacity and, if not utilized immediately, stockpile this material separately from other spoil and provide needed protection from wind and water erosion or contamination by other acid or toxic material; (B) segregate the B horizon of the natural soil, or underlying C horizons or other strata, or a combination of the horizons or other strata that are shown to be both texturally and chemically suitable for plant growth and that can be shown to be equally or more favorable for plant growth than the B horizon, in sufficient quantities to create in the regraded final soil a root zone of comparable depth and quality to that which existed in the natural soil and, if not utilized immediately, stockpile this material separately from other spoil and provide needed protection from wind and water erosion or contamination by other acid or toxic material; (C) replace and regrade the root zone material described in paragraph (B) of this subdivision with proper compaction and uniform depth over the regraded spoil material; and (D) redistribute and grade in a uniform manner the surface soil horizon described in paragraph (A) of this subdivision;

(8) Create, if authorized in the approved surface mining and reclamation plan and permit, permanent impoundments of water on mining sites as part of reclamation activities in accordance with rules promulgated by the  secretary;

(9) Where augering is the method of recovery, seal all auger holes with an impervious and noncombustible material in order to prevent drainage except where the  secretary determines that the resulting impoundment of water in the auger holes may create a hazard to the environment or the public welfare and safety: Provided, That the  secretary may prohibit augering if necessary to maximize the utilization, recoverability or conservation of the mineral resources or to protect against adverse water quality impacts;

(10) Minimize the disturbances to the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quality and quantity of water in surface and groundwater systems both during and after surface mining operations and during reclamation by: (A) Avoiding acid or other toxic mine drainage by such measures as, but not limited to: (i) Preventing or removing water from contact with toxic producing deposits; (ii) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses; and (iii) casing, sealing or otherwise managing boreholes, shafts and wells and keep acid or other toxic drainage from entering ground and surface waters; (B) conducting surface mining operations so as to prevent to the extent possible, using the best technology currently available, additional contributions of suspended solids to streamflow or runoff outside the permit area, but in no event may contributions be in excess of requirements set by applicable state or federal law; (C) constructing an approved drainage system pursuant to paragraph (B) of this subdivision, prior to commencement of surface mining operations, the system to be certified by a person approved by the  secretary to be constructed as designed and as approved in the reclamation plan; (D) avoiding channel deepening or enlargement in operations requiring the discharge of water from mines; (E) unless otherwise authorized by the  secretary, cleaning out and removing temporary or large settling ponds or other siltation structures after disturbed areas are revegetated and stabilized, and depositing the silt and debris at a site and in a manner approved by the  secretary; (F) restoring recharge capacity of the mined area to approximate premining conditions; and (G) any other actions prescribed by the  secretary;

(11) With respect to surface disposal of mine wastes, tailings, coal processing wastes and other wastes in areas other than the mine working excavations: (A) Stabilize all waste piles in designated areas through construction in compacted layers, including the use of noncombustible and impervious materials if necessary, and assure the final contour of the waste pile will be compatible with natural surroundings and that the site will be stabilized and revegetated according to the provisions of this article; and (B) assure that the construction of any coal waste pile or other coal waste storage area utilizes appropriate technologies, such as capping or the use of liners, or any other demonstrated technologies or measures which are consistent with good engineering practices, to prevent an acid mine drainage discharge;

(12) Design, locate, construct, operate, maintain, enlarge, modify and remove or abandon, in accordance with standards and criteria developed pursuant to subsection (f) of this section, all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes or other liquid and solid wastes and used either temporarily or permanently as dams or embankments;

(13) Refrain from surface mining within five hundred feet of any active and abandoned underground mines in order to prevent breakthroughs and to protect health or safety of miners: Provided, That the  secretary shall permit an operator to mine near, through or partially through an abandoned underground mine or closer to an active underground mine if: (A) The nature, timing and sequencing of the approximate coincidence of specific surface mine activities with specific underground mine activities are coordinated jointly by the operators involved and approved by the  secretary; and (B) the operations will result in improved resource recovery, abatement of water pollution or elimination of hazards to the health and safety of the public: Provided, however, That any breakthrough which does occur shall be sealed;

(14) Ensure that all debris, acid-forming materials, toxic materials or materials constituting a fire hazard are treated or buried and compacted, or otherwise disposed of in a manner designed to prevent contamination of ground or surface waters, and that contingency plans are developed to prevent sustained combustion: Provided, That the operator shall remove or bury all metal, lumber, equipment and other debris resulting from the operation before grading release;

(15) Ensure that explosives are used only in accordance with existing state and federal law and the rules promulgated by the secretary, which shall include provisions to:

(A) Maintain for a period of at least three years and make available for public inspection, upon written request, a log detailing the location of the blasts, the pattern and depth of the drill holes, the amount of explosives used per hole and the order and length of delay in the blasts; and

(B) Require that all blasting operations be conducted by persons certified by the Division of Mining and Reclamation.

(16) Ensure that all reclamation efforts proceed in an environmentally sound manner and as contemporaneously as practicable with the surface mining operations. Time limits shall be established by the secretary requiring backfilling, grading and planting to be kept current: Provided, That where surface mining operations and underground mining operations are proposed on the same area, which operations must be conducted under separate permits, the secretary may grant a variance from the requirement that reclamation efforts proceed as contemporaneously as practicable to permit underground mining operations prior to reclamation:

(A) If the secretary finds in writing that:

(i) The applicant has presented, as part of the permit application, specific, feasible plans for the proposed underground mining operations;

(ii) The proposed underground mining operations are necessary or desirable to assure maximum practical recovery of the mineral resource and will avoid multiple disturbance of the surface;

(iii) The applicant has satisfactorily demonstrated that the plan for the underground mining operations conforms to requirements for underground mining in the jurisdiction and that permits necessary for the underground mining operations have been issued by the appropriate authority;

(iv) The areas proposed for the variance have been shown by the applicant to be necessary for the implementing of the proposed underground mining operations;

(v) No substantial adverse environmental damage, either on-site or off-site, will result from the delay in completion of reclamation as required by this article; and

(vi) Provisions for the off-site storage of spoil will comply with subdivision (22), subsection (b) of this section;

(B) If the secretary has promulgated specific rules to govern the granting of the variances in accordance with the provisions of this subparagraph and has imposed any additional requirements as the secretary considers necessary;

(C) If variances granted under the provisions of this paragraph are reviewed by the secretary not more than three years from the date of issuance of the permit: Provided, That the underground mining permit shall terminate if the underground operations have not commenced within three years of the date the permit was issued, unless extended as set forth in subdivision (3), section eight of this article; and

(D) If liability under the bond filed by the applicant with the  secretary pursuant to subsection (b), section eleven of this article is for the duration of the underground mining operations and until the requirements of subsection (g), section eleven of this article and section twenty-three of this article have been fully complied with;

(17) Ensure that the construction, maintenance and post-mining conditions of access and haul roads into and across the site of operations will control or prevent erosion and siltation, pollution of water, damage to fish or wildlife or their habitat, or public or private property: Provided, That access roads constructed for and used to provide infrequent service to surface facilities, such as ventilators or monitoring devices, are exempt from specific construction criteria provided adequate stabilization to control erosion is achieved through alternative measures;

(18) Refrain from the construction of roads or other access ways up a stream bed or drainage channel or in proximity to the channel so as to significantly alter the normal flow of water;

(19) Establish on the regraded areas, and all other lands affected, a diverse, effective and permanent vegetative cover of the same seasonal variety native to the area of land to be affected or of a fruit, grape or berry producing variety suitable for human consumption and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area, except that introduced species may be used in the revegetation process where desirable or when necessary to achieve the approved post-mining land use plan;

(20) Assume the responsibility for successful revegetation, as required by subdivision (19) of this subsection, for a period of not less than five growing seasons, as defined by the  secretary, after the last year of augmented seeding, fertilizing, irrigation or other work in order to assure compliance with subdivision (19) of this subsection: Provided, That when the  secretary issues a written finding approving a long-term agricultural post-mining land use as a part of the mining and reclamation plan, the director may grant exception to the provisions of subdivision (19) of this subsection: Provided, however, That when the director approves an agricultural post-mining land use, the applicable five growing seasons of responsibility for revegetation begins on the date of initial planting for the agricultural post-mining land use;

On lands eligible for remining assume the responsibility for successful revegetation, as required by subdivision (19) of this subsection, for a period of not less than two growing seasons, as defined by the director after the last year of augmented seeding, fertilizing, irrigation or other work in order to assure compliance with subdivision (19) of this subsection;

(21) Protect off-site areas from slides or damage occurring during surface mining operations and not deposit spoil material or locate any part of the operations or waste accumulations outside the permit area: Provided, That spoil material may be placed outside the permit area if approved by the secretary after a finding that environmental benefits will result from the placing of spoil material outside the permit area;

(22) Place all excess spoil material resulting from surface mining activities in a manner that: (A) Spoil is transported and placed in a controlled manner in position for concurrent compaction and in a way as to assure mass stability and to prevent mass movement; (B) the areas of disposal are within the bonded permit areas and all organic matter is removed immediately prior to spoil placements; (C) appropriate surface and internal drainage system or diversion ditches are used to prevent spoil erosion and movement; (D) the disposal area does not contain springs, natural water courses or wet weather seeps, unless lateral drains are constructed from the wet areas to the main under drains in a manner that filtration of the water into the spoil pile will be prevented; (E) if placed on a slope, the spoil is placed upon the most moderate slope among those upon which, in the judgment of the  secretary, the spoil could be placed in compliance with all the requirements of this article, and is placed, where possible, upon, or above, a natural terrace, bench or berm, if placement provides additional stability and prevents mass movement; (F) where the toe of the spoil rests on a downslope, a rock toe buttress, of sufficient size to prevent mass movement, is constructed; (G) the final configuration is compatible with the natural drainage pattern and surroundings and suitable for intended uses; (H) the design of the spoil disposal area is certified by a qualified registered professional engineer in conformance with professional standards; and (I) all other provisions of this article are met: Provided, That where the excess spoil material consists of at least eighty percent, by volume, sandstone, limestone or other rocks that do not slake in water and will not degrade to soil material, the  secretary may approve alternate methods for disposal of excess spoil material, including fill placement by dumping in a single lift, on a site-specific basis: Provided, however, That the services of a qualified registered professional engineer experienced in the design and construction of earth and rockfill embankment are utilized: Provided further, That the approval may not be unreasonably withheld if the site is suitable;

(23) Meet any other criteria necessary to achieve reclamation in accordance with the purposes of this article, taking into consideration the physical, climatological and other characteristics of the site;

(24) To the extent possible, using the best technology currently available, minimize disturbances and adverse impacts of the operation on fish, wildlife and related environmental values, and achieve enhancement of these resources where practicable; and

(25) Retain a natural barrier to inhibit slides and erosion on permit areas where outcrop barriers are required: Provided, That constructed barriers may be allowed where: (A) Natural barriers do not provide adequate stability; (B) natural barriers would result in potential future water quality deterioration; and (C) natural barriers would conflict with the goal of maximum utilization of the mineral resource: Provided, however, That at a minimum, the constructed barrier shall be of sufficient width and height to provide adequate stability and the stability factor shall equal or exceed that of the natural outcrop barrier: Provided further, That where water quality is paramount, the constructed barrier shall be composed of impervious material with controlled discharge points.

(c)(1) The secretary may prescribe procedures pursuant to which he or she may permit surface mining operations for the purposes set forth in subdivision (3) of this subsection.

(2) Where an applicant meets the requirements of subdivisions (3) and (4) of this subsection, a permit without regard to the requirement to restore to approximate original contour set forth in subsection (b) or (d) of this section may be granted for the surface mining of coal where the mining operation will remove an entire coal seam or seams running through the upper fraction of a mountain, ridge or hill, except as provided in paragraph (A), subdivision (4) of this subsection, by removing all of the overburden and creating a level plateau or a gently rolling contour with no highwalls remaining and capable of supporting post-mining uses in accordance with the requirements of this subsection.

(3) In cases where an industrial, commercial, agricultural, commercial forestry, residential or public facility including recreational uses is proposed for the post-mining use of the affected land, the  secretary may grant a permit for a surface mining operation of the nature described in subdivision (2) of this subsection where: (A) The proposed post-mining land use is determined to constitute an equal or better use of the affected land, as compared with premining use; (B) the applicant presents specific plans for the proposed post-mining land use and appropriate assurances that the use will be: (i) Compatible with adjacent land uses; (ii) practicable with respect to achieving the proposed use; (iii) obtainable according to data regarding expected need and market; (iv) supported by commitments from public agencies where appropriate; (v) practicable with respect to private financial capability for completion of the proposed use; (vi) planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the post-mining land use; and (vii) designed by a person approved by the  secretary in conformance with standards established to assure the stability, drainage and configuration necessary for the intended use of the site; (C) the proposed use would be compatible with adjacent land uses, and existing state and local land use plans and programs; (D) the  secretary provides the county commission of the county in which the land is located and any state or federal agency which the  secretary, in his or her discretion, determines to have an interest in the proposed use, an opportunity of not more than sixty days to review and comment on the proposed use; and (E) all other requirements of this article will be met.

(4) In granting any permit pursuant to this subsection, the  secretary shall require that: (A) A natural barrier be retained to inhibit slides and erosion on permit areas where outcrop barriers are required: Provided, That constructed barriers may be allowed where: (i) Natural barriers do not provide adequate stability; (ii) natural barriers would result in potential future water quality deterioration; and (iii) natural barriers would conflict with the goal of maximum utilization of the mineral resource: Provided, however, That, at a minimum, the constructed barrier shall be sufficient in width and height to provide adequate stability and the stability factor shall equal or exceed that of the natural outcrop barrier: Provided further, That where water quality is paramount, the constructed barrier shall be composed of impervious material with controlled discharge points; (B) the reclaimed area is stable; (C) the resulting plateau or rolling contour drains inward from the outslopes except at specific points; (D) no damage will be done to natural watercourses; (E) spoil will be placed on the mountaintop bench as is necessary to achieve the planned post-mining land use: And provided further, That all excess spoil material not retained on the mountaintop shall be placed in accordance with the provisions of subdivision (22), subsection (b) of this section; and (F) ensure stability of the spoil retained on the mountaintop and meet the other requirements of this article.

(5) All permits granted under the provisions of this subsection shall be reviewed not more than three years from the date of issuance of the permit; unless the applicant affirmatively demonstrates that the proposed development is proceeding in accordance with the terms of the approved schedule and reclamation plan.

(d) In addition to those general performance standards required by this section, when surface mining occurs on slopes of twenty degrees or greater, or on lesser slopes as may be defined by rule after consideration of soil and climate, no debris, abandoned or disabled equipment, spoil material or waste mineral matter will be placed on the natural downslope below the initial bench or mining cut: Provided, That soil or spoil material from the initial cut of earth in a new surface mining operation may be placed on a limited specified area of the downslope below the initial cut if the permittee can establish to the satisfaction of the  secretary that the soil or spoil will not slide and that the other requirements of this section can still be met.

(e) The secretary may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code that permit variances from the approximate original contour requirements of this section: Provided, That the watershed control of the area is improved: Provided, however, That complete backfilling with spoil material is required to completely cover the highwall, which material will maintain stability following mining and reclamation.

(f) The secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code for the design, location, construction, maintenance, operation, enlargement, modification, removal and abandonment of new and existing coal mine waste piles. In addition to engineering and other technical specifications, the standards and criteria developed pursuant to this subsection shall include provisions for review and approval of plans and specifications prior to construction, enlargement, modification, removal or abandonment; performance of periodic inspections during construction; issuance of certificates of approval upon completion of construction; performance of periodic safety inspections; and issuance of notices and orders for required remedial or maintenance work or affirmative action: Provided, That whenever the  secretary finds that any coal processing waste pile constitutes an imminent danger to human life, he or she may, in addition to all other remedies and without the necessity of obtaining the permission of any person prior or present who operated or operates a pile or the landowners involved, enter upon the premises where any coal processing waste pile exists and may take or order to be taken any remedial action that may be necessary or expedient to secure the coal processing waste pile and to abate the conditions which cause the danger to human life: Provided, however, That the cost reasonably incurred in any remedial action taken by the  secretary under this subsection may be paid for initially by funds appropriated to the division for these purposes and the sums expended shall be recovered from any responsible operator or landowner, individually or jointly, by suit initiated by the Attorney General at the request of the  secretary. For purposes of this subsection, operates or operated means to enter upon a coal processing waste pile, or part of a coal processing waste pile, for the purpose of disposing, depositing, dumping coal processing wastes on the pile or removing coal processing waste from the pile, or to employ a coal processing waste pile for retarding the flow of or for the impoundment of water.

(g) The secretary shall promulgate for review and consideration by the West Virginia Legislature during the 2017 Regular Session of the West Virginia Legislature revisions to the rules for minimizing the disturbances to the prevailing hydrologic balance at a mine site and in associated off-site areas both during and after surface mining operations and during reclamation as required under subdivision (10), subsection (b) of this section, including specifically the rules for stormwater runoff and control plans.  The secretary shall specifically conform these rules to the federal standards codified at 30 C.F.R. §816.41 (1983) and 30 C.F.R. §816.45-47 (1983) when proposing revisions to the state rule. The secretary shall not propose rules more stringent than the federal standards codified at 30 C.F.R. §816.41 (1983) and 30 C.F.R. §816.45-47 (1983) when proposing revisions to the state rule.

§22-3-13a. Preblast survey requirements.

(a) At least thirty days prior to commencing blasting, as defined in section twenty-two-a of this article, an operator or an operator’s designee shall make the following notifications in writing to all owners and occupants of man-made dwellings or structures that the operator or operator’s designee will perform preblast surveys in accordance with subsection (e) of this section:

(1) For surface mining operations the required notifications shall be to all owners and occupants of man-made dwellings or structures within one-half mile of the permitted area or areas; and

(2) For blasting associated with permitted surface disturbance of underground mines and blasting associated with specified construction, including but not limited to, haul roads, shafts, and/or drainage structures, the operator may send a written request to the secretary asking that the required notifications be limited to all owners and occupants of man-made dwellings or structures within one-half mile of the proposed blasting area.

(b) An owner of a man-made dwelling or structure within the areas described in subdivision (1) or (2), subsection (a) of this section may waive the right to a preblast survey in writing.  If an occupant or owner of a man-made dwelling or structure refuses to allow the operator or the operator’s designee access to the dwelling or structure and refuses to waive in writing the right to a preblast survey or to the extent that access to any portion of the structure, underground water supply or well is impossible or impractical under the circumstances, the preblast survey shall indicate that access was refused, impossible or impractical. The operator or the operator’s designee shall execute a sworn affidavit explaining the reasons and circumstances surrounding the refusals. The secretary may not determine the preblast survey to be incomplete because it indicates that access to a particular structure, underground water supply or well was refused, impossible or impractical. The operator shall send copies of all written waivers and affidavits executed pursuant to this subsection to the secretary.

(c) If a preblast survey was waived by the owner and was within the requisite area and the property was sold, the new owner may request a preblast survey from the operator.

(d) An owner within the requisite area may request, from the operator, a preblast survey on structures constructed after the original preblast survey.

(e) The preblast survey shall include:

(1) The names, addresses or description of structure location and telephone numbers of the owner and the residents of the structure being surveyed and the structure number from the permit blasting map;

(2) The current home insurer of the owner and the residents of the structure;

(3) The names, addresses and telephone numbers of the surface mining operator and the permit number;

(4) The current general liability insurer of the surface mining operator;

(5) The name, address and telephone number of the person or firm performing the preblast survey;

(6) The current general liability insurer of the person or firm performing the preblast survey;

(7) The date of the preblast survey and the date it was mailed or delivered to the secretary;

(8) A general description of the structure and its appurtenances, including, but not limited to: (A) The number of stories; (B) the construction materials for the frame and the exterior and interior finish; (C) the type of construction including any unusual or substandard construction; and (D) the approximate age of the structure;

(9) A general description of the survey methods and the direction of progression of the survey, including a key to abbreviations used;

(10) Written documentation and drawings, videos or photographs of the preblast defects and other physical conditions of all structures, appurtenances and water sources which could be affected by blasting;

(11) Written documentation and drawings, videos or photographs of the exterior and interior of the structure to indicate preblast defects and condition;

(12) Written documentation and drawings, videos or photographs of the exterior and interior of any appurtenance of the structure to indicate preblast defects and condition;

(13) Sufficient exterior and interior photographs or videos, using a variety of angles, of the structure and its appurtenances to indicate preblast defects and the condition of the structure and appurtenances;

(14) Written documentation and drawings, videos or photographs of any unusual or substandard construction technique and materials used on the structure or its appurtenances or both structure and appurtenances;

(15) Written documentation relating to the type of water supply, including a description of the type of system and treatment being used, an analysis of untreated water supplies, a water analysis of water supplies other than public utilities and information relating to the quantity and quality of water;

(16) When the water supply is a well, written documentation, where available, relating to the type of well; the well log; the depth, age and type of casing or lining; the static water level; flow data; the pump capacity; the drilling contractor; and the source or sources of the documentation;

(17) A description of any portion of the structure and appurtenances not documented or photographed and the reasons;

(18) The signature of the person performing the survey; and

(19) Any other information required by the secretary which additional information shall be established by rule in accordance with article three, chapter twenty-nine-a of this code.

(f) The preblast survey shall be submitted to the secretary at least fifteen days prior to the commencement of any production blasting. The secretary shall review each preblast survey as to form and completeness only and notify the operator of any deficiencies: Provided, That once all required surveys have been reviewed and accepted by the secretary, blasting may commence sooner than fifteen days after submittal. The secretary shall provide a copy of the preblast survey to the owner or occupant.

(g) The secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code dealing with preblast survey requirements and setting the qualifications for individuals and firms performing preblast surveys.  

(h) The provisions of this section do not apply to the extraction of minerals by underground mining methods.

§22-3-14. General environmental protection performance standards for the surface effects of underground mining; application of other provisions of article to surface effects of underground mining.

(a) The director shall promulgate separate rules directed toward the surface effects of underground coal mining operations, embodying the requirements in subsection (b) of this section: Provided, That in adopting such rules, the director shall consider the distinct difference between surface coal mines and underground coal mines in West Virginia. Such rules may not conflict with or supersede any provision of the federal or state coal mine health and safety laws or any rule issued pursuant thereto.

(b) Each permit issued by the director pursuant to this article and relating to underground coal mining shall require the operation at a minimum to:

(1) Adopt measures consistent with known technology in order to prevent subsidence causing material damage to the extent technologically and economically feasible, maximize mine stability and maintain the value and reasonably foreseeable use of overlying surface lands, except in those instances where the mining technology used requires planned subsidence in a predictable and controlled manner: Provided, That this subsection does not prohibit the standard method of room and pillar mining;

(2) Seal all portals, entryways, drifts, shafts, or other openings that connect the earth’s surface to the underground mine workings when no longer needed for the conduct of the mining operations in accordance with the requirements of all applicable federal and state law and rules promulgated pursuant thereto;

(3) Fill or seal exploratory holes no longer necessary for mining and maximize to the extent technologically and economically feasible, if environmentally acceptable, return of mine and processing waste, tailings, and any other waste incident to the mining operation to the mine workings or excavations;

(4) With respect to surface disposal of mine wastes, tailings, coal processing wastes, and other wastes in areas other than the mine workings or excavations, stabilize all waste piles created by the operator from current operations through construction in compacted layers, including the use of incombustible and impervious materials, if necessary, and assure that any leachate therefrom will not degrade surface or groundwaters below water quality standards established pursuant to applicable federal and state law and that the final contour of the waste accumulation will be compatible with natural surroundings and that the site is stabilized and revegetated according to the provisions of this section;

(5) Design, locate, construct, operate, maintain, enlarge, modify, and remove or abandon, in accordance with the standards and criteria developed pursuant to §22-3-13 of this code, all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, and solid wastes and used either temporarily or permanently as dams or embankments;

(6) Establish on regraded areas and all other disturbed areas a diverse and permanent vegetative cover capable of self-regeneration and plant succession and at least equal in extent of cover to the natural vegetation of the area within the time period prescribed in §22-3-13(b)(20) of this code;

(7) Protect off-site areas from damages which may result from such mining operations;

(8) Eliminate fire hazards and otherwise eliminate conditions which constitute a hazard to health and safety of the public;

(9) Minimize the disturbance of the prevailing hydrologic balance at the mine site and in associated off-site areas and to the quantity and the quality of water in surface and groundwater systems both during and after mining operations and during reclamation by: (A) Avoiding acid or other toxic mine drainage by such measures as, but not limited to: (i) Preventing or removing water from contact with toxic producing deposits; (ii) treating drainage to reduce toxic content which adversely affects downstream water before being released to water courses; and (iii) casing, sealing, or otherwise managing boreholes, shafts, and wells to keep acid or other toxic drainage from entering ground and surface waters; and (B) conducting mining operations so as to prevent, to the extent possible using the best technology currently available, additional contributions of suspended solids to streamflow or runoff outside the permit area, but in no event shall the contributions be in excess of requirements set by applicable state or federal law, and avoiding channel deepening or enlargement in operations requiring the discharge of water from mines: Provided, That in recognition of the distinct differences between surface and underground mining the monitoring of water from underground coal mine workings shall be in accordance with the provisions of the Clean Water Act of 1977;

(10) With respect to other surface impacts of underground mining not specified in this subsection, including the construction of new roads or the improvement or use of existing roads to gain access to the site of such activities and for haulage, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to such activities, operate in accordance with the standards established under §22-3-13 of this code for such effects which result from surface-mining operations: Provided, That the director shall make such modifications in the requirements imposed by this subdivision as are necessary to accommodate the distinct difference between surface and underground mining in West Virginia;

(11) To the extent possible using the best technology currently available, minimize disturbances and adverse impacts of the operation on fish, aquatic life, wildlife, and related environmental values, and achieve enhancement of such resources where practicable; and

(12) Unless otherwise permitted by the director and in consideration of the relevant safety and environmental factors, locate openings for all new drift mines working in acid producing or iron producing coal seams in a manner as to prevent a gravity discharge of water from the mine.

(c) In order to protect the stability of the land, the director shall suspend underground mining under urbanized areas, cities, towns, and communities and adjacent to industrial or commercial buildings, major impoundments, or permanent streams if he or she finds imminent danger to inhabitants of the urbanized areas, cities, towns, or communities.

(d) The provisions of this article relating to permits, bonds, insurance, inspections, reclamation and enforcement, public review, and administrative and judicial review are also applicable to surface operations and surface impacts incident to an underground mine with such modifications by rule to the permit application requirements, permit approval, or denial procedures and bond requirements as are necessary to accommodate the distinct difference between surface mines and underground mines in West Virginia.

(e) The secretary shall promulgate for review and consideration by the West Virginia Legislature during the regular session of the Legislature, 2020, revisions to legislative rules (38 CSR 2) pertaining to surface owner protection from material damage due to subsidence under this article. The secretary shall specifically consider adoption of the federal standards codified at 30 C.F.R. § 817.121.

§22-3-15. Inspections; monitoring; right of entry; inspection of records; identification signs; progress maps.

(a) The director shall cause to be made inspections of surface-mining operations as are necessary to effectively enforce the requirements of this article and for such purposes the director or his or her authorized representative shall without advance notice and upon presentation of appropriate credentials: (A) Have the right of entry to, upon or through surface-mining operations or any premises in which any records required to be maintained under subdivision (1), subsection (b) of this section are located; and (B) at reasonable times and without delay, have access to and copy any records and inspect any monitoring equipment or method of operation required under this article.

(b) For the purpose of enforcement under this article, in the administration and enforcement of any permit under this article, or for determining whether any person is in violation of any requirement of this article:

(1) The director shall, at a minimum, require any operator to: (A) Establish and maintain appropriate records; (B) make monthly reports to the division; (C) install, use and maintain any necessary monitoring equipment or methods consistent with subdivision (11), subsection (a), section nine of this article; (D) evaluate results in accordance with such methods, at such locations, intervals and in such manner as the director prescribes; and (E) provide any other information relative to surface-mining operations as the director finds reasonable and necessary; and

(2) For those surface-mining operations which remove or disturb strata that serve as aquifers which significantly ensure the hydrologic balance of water use either on or off the mining site, the director shall require that: (A) Monitoring sites be established to record the quantity and quality of surface drainage above and below the mine site as well as in the potential zone of influence; (B) monitoring sites be established to record level, amount and samples of groundwater and aquifers potentially affected by the surface-mining and also below the lowermost mineral seam to be mined; (C) records or well logs and borehole data be maintained; and (D) monitoring sites be established to record precipitation. The monitoring, data collection and analysis required by this section shall be conducted according to standards and procedures set forth by the director in order to assure their reliability and validity.

(c) All surface-mining operations shall be inspected at least once every thirty days. The inspections shall be made on an irregular basis without prior notice to the operator or the operator's agents or employees, except for necessary on-site meetings with the operator. The inspections shall include the filing of inspection reports adequate to enforce the requirements, terms and purposes of this article.

(d) Each permittee shall maintain at the entrances to the surface-mining operations a clearly visible monument which sets forth the name, business address and telephone number of the permittee and the permit number of the surface-mining operations.

(e) Copies of any records, reports, inspection materials or information obtained under this article by the director shall be made immediately available to the public at central and sufficient locations in the county, multicounty or state area of mining so that they are conveniently available to residents in the areas of mining unless specifically exempted by this article.

(f) Within thirty days after service of a copy of an order of the director upon an operator by registered or certified mail, the operator shall furnish to the director five copies of a progress map prepared by or under the supervision of a person approved by the director showing the disturbed area to the date of such map. Such progress map shall contain information identical to that required for both the proposed and final maps required by this article, and shall show in detail completed reclamation work as required by the director. Such progress map shall include a geologic survey sketch showing the location of the operation, shall be properly referenced to a permanent landmark, and shall be within such reasonable degree of accuracy as may be prescribed by the director. If no land has been disturbed by operations during the preceding year, the operator shall notify the director of that fact.

(g) Whenever on the basis of available information, including reliable information from any person, the director has cause to believe that any person is in violation of this article, any permit condition or any rule promulgated under this article, the director shall immediately order state inspection of the surface-mining operation at which the alleged violation is occurring unless the information is available as a result of a prior state inspection. The director shall notify any person who supplied such reliable information when the state inspection will be carried out. Such person may accompany the inspector during the inspection.

(h) When requested by the permittee, the director may provide for a compliance conference with his or her authorized representative to review the compliance status of any coal exploration or surface-coal mining and reclamation operation. Any such conference may not constitute an inspection as defined in this section.

§22-3-16. Cessation of operation by order of inspector; informal conference; imposition of affirmative obligations; appeal.

(a) Notwithstanding any other provisions of this article, a surface-mining reclamation inspector has the authority to issue a cessation order for any portion of a surface-mining operation when an inspector determines that any condition or practice exists, or that any permittee is in violation of any requirements of this article or any permit condition required by this article, which condition, practice or violation also creates an imminent danger to the health or safety of the public, or is causing or can reasonably be expected to cause significant, imminent environmental harm to land, air or water resources. The cessation order takes effect immediately. Unless waived in writing, an informal conference shall be held at or near the site relevant to the violation set forth in the cessation order within twenty-four hours after the order becomes effective or such order shall expire. The conference shall be held before a surface-mining reclamation supervisor who shall, immediately upon conclusion of said hearing, determine when and if the operation or portion thereof may resume. Operators who believe they are aggrieved by the decision of the surface-mining reclamation supervisor may immediately appeal to the director, setting forth reasons why the operation should not be halted. The director forthwith shall determine when the operation or portion thereof may be resumed.

(b) The cessation order remains in effect until the director determines that the condition, practice or violation has been abated, or until modified, vacated or released by the director. Where the director finds that the ordered cessation of any portion of a surface coal mining operation will not completely abate the imminent danger to health or safety of the public or the significant imminent environmental harm to land, air or water resources, the director shall, in addition to the cessation order, impose affirmative obligations on the operator requiring the operator to take whatever steps the director determines necessary to abate the imminent danger or the significant environmental harm.

(c) Any cessation order issued pursuant to this section or any other provision of this article may be released by any inspector. An inspector shall be readily available to terminate a cessation order upon abatement of the violation.

§22-3-17. Notice of violation; procedure and actions; enforcement; permit revocation and bond forfeiture; civil and criminal penalties; appeals to the board; prosecution; injunctive relief.

(a) If any of the requirements of this article, rules promulgated pursuant thereto or permit conditions have not been complied with, the director shall cause a notice of violation to be served upon the operator or the operator's duly authorized agent. A copy of the notice shall be handed to the operator or the operator's duly authorized agent in person or served by certified mail addressed to the operator at the permanent address shown on the application for a permit. The notice shall specify in what respects the operator has failed to comply with this article, rules or permit conditions and shall specify a reasonable time for abatement of the violation not to exceed thirty days. If the operator has not abated the violation within the time specified in the notice, or any reasonable extension thereof, not to exceed sixty days, the director shall order the cessation of the operation or the portion thereof causing the violation, unless the operator affirmatively demonstrates that compliance is unattainable due to conditions totally beyond the control of the operator. If a violation is not abated within the time specified or any extension thereof, or any cessation order is issued, a mandatory civil penalty of not less than $750 per day per violation shall be assessed. A cessation order remains in effect until the director determines that the violation has been abated or until modified, vacated or terminated by the director or by a court. In any cessation order issued under this subsection, the director shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the necessary measures in the order.

(b) If the director determines that a pattern of violations of any requirement of this article or any permit condition exists or has existed, as a result of the operator's lack of reasonable care and diligence, or that the violations are willfully caused by the operator, the director shall immediately issue an order directing the operator to show cause why the permit should not be suspended or revoked and giving the operator thirty days in which to request a public hearing. If a hearing is requested, the director shall inform all interested parties of the time and place of the hearing. Any hearing under this section shall be recorded and is subject to the provisions of chapter twenty-nine-a of this code. Within sixty days following the public hearing, the director shall issue and furnish to the permittee and all other parties to the hearing a written decision, and the reasons therefor, concerning suspension or revocation of the permit. Upon the operator's failure to show cause why the permit should not be suspended or revoked, the director shall immediately suspend or revoke the operator's permit. If the permit is revoked, the director shall initiate procedures in accordance with rules promulgated by the director to forfeit the entire amount of the operator's bond, or other security posted pursuant to section eleven or twelve of this article, and give notice to the Attorney General, who shall collect the forfeiture without delay: Provided, That the entire proceeds of such forfeiture shall be deposited with the treasurer of the State of West Virginia to the credit of the special reclamation fund. All forfeitures collected shall be deposited in the special reclamation fund and shall be expended back upon the areas for which the bond was posted: Provided, however, That any excess therefrom shall remain in the special reclamation fund.

Within one year following the notice of permit revocation, subject to the discretion of the director and based upon a petition for reinstatement, the revoked permit may be reinstated. The reinstated permit may be assigned to any person who meets the permit eligibility requirements of this article.

(c) Any person engaged in surface-mining operations who violates any permit condition or who violates any other provision of this article or rules promulgated pursuant thereto may also be assessed a civil penalty. The penalty may not exceed $5,000. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments. In determining the amount of the penalty, consideration shall be given to the operator's history of previous violations at the particular surface-mining operation, the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public, whether the operator was negligent, and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of the violation.

(d)(1) Upon the issuance of a notice or order pursuant to this section, the assessment officer shall, within thirty days, set a proposed penalty assessment and notify the operator in writing of such proposed penalty assessment. The proposed penalty assessment must be paid in full within thirty days of receipt or, if the operator wishes to contest either the amount of the penalty or the fact of violation, an informal conference with the assessment officer may be requested within fifteen days or a formal hearing before the surface mine board may be requested within thirty days. The notice of proposed penalty assessment shall advise the operator of the right to an informal conference and a formal hearing pursuant to this section. When an informal conference is requested, the operator has fifteen days from receipt of the assessment officer's decision to request a formal hearing before the board.

(A) When an informal conference is held, the assessment officer has authority to affirm, modify or vacate the notice, order or proposed penalty assessment.

(B) When a formal hearing is requested, the amount of the proposed penalty assessment shall be forwarded to the director for placement in an escrow account. Formal hearings shall be of record and subject to the provisions of article five, chapter twenty-nine-a of this code. Following the hearing the board shall affirm, modify or vacate the notice, order or proposed penalty assessment and, when appropriate, incorporate an assessment order requiring that the assessment be paid.

(2) Civil penalties owed under this section may be recovered by the director in the circuit court of Kanawha County. Civil penalties collected under this article shall be deposited with the treasurer of the State of West Virginia to the credit of the special reclamation fund established in section eleven of this article. If, through the administrative or judicial review of the proposed penalty it is determined that no violation occurred or that the amount of the penalty should be reduced, the director shall within thirty days remit the appropriate amount to the person, with interest at the rate of six percent or at the prevailing United States department of the treasury rate, whichever is greater. Failure to forward the money to the director within thirty days is a waiver of all legal rights to contest the violation or the amount of the penalty.

(e) Any person having an interest which is or may be adversely affected by any order of the director or the surface mine board may file an appeal only in accordance with the provisions of article one, chapter twenty-two-b of this code, within thirty days after receipt of the order.

(f) The filing of an appeal or a request for an informal conference or formal hearing provided for in this section does not stay execution of the order appealed from. Pending completion of the investigation and conference or hearing required by this section, the applicant may file with the director a written request that the director grant temporary relief from any notice or order issued under section sixteen or seventeen of this article, together with a detailed statement giving reasons for granting such relief. The director shall issue an order or decision granting or denying such relief expeditiously: Provided, That where the applicant requests relief from an order for cessation of surface-mining and reclamation operations, the decision on the request shall be issued within five days of its receipt. The director may grant such relief, under such conditions as he or she may prescribe if:

(1) All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;

(2) The person requesting the relief shows that there is a substantial likelihood that they will prevail on the merits in the final determination of the proceedings;

(3) The relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air or water resources; and

(4) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part, by the director.

(g) Any person who willfully and knowingly violates a condition of a permit issued pursuant to this article or rules promulgated pursuant thereto, or fails or refuses to comply with any order issued under said article and rules or any order incorporated in a final decision issued by the director, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $10,000, or imprisoned in the county jail not more than one year, or both fined and imprisoned.

(h) Whenever a corporate operator violates a condition of a permit issued pursuant to this article, rules promulgated pursuant thereto, or any order incorporated in a final decision issued by the director, any director, officer or agent of the corporation who willfully and knowingly authorized, ordered or carried out the failure or refusal, is subject to the same civil penalties, fines and imprisonment that may be imposed upon a person under subsections (c) and (g) of this section.

(i) Any person who knowingly makes any false statement, representation or certification, or knowingly fails to make any statement, representation or certification in any application, petition, record, report, plan or other document filed or required to be maintained pursuant to this article or rules promulgated pursuant thereto, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $10,000, or imprisoned in the county jail not more than one year, or both fined and imprisoned.

(j) Whenever any person: (A) Violates or fails or refuses to comply with any order or decision issued by the director under this article; or (B) interferes with, hinders or delays the director in carrying out the provisions of this article; or (C) refuses to admit the director to the mine; or (D) refuses to permit inspection of the mine by the director; or (E) refuses to furnish any reasonable information or report requested by the director in furtherance of the provisions of this article; or (F) refuses to permit access to, and copying of, such records as the director determines necessary in carrying out the provisions of this article; or (G) violates any other provisions of this article, the rules promulgated pursuant thereto, or the terms and conditions of any permit, the director, the Attorney General or the prosecuting attorney of the county in which the major portion of the permit area is located may institute a civil action for relief, including a permanent or temporary injunction, restraining order or any other appropriate order, in the circuit court of Kanawha County or any court of competent jurisdiction to compel compliance with and enjoin such violations, failures or refusals. The court or the judge thereof may issue a preliminary injunction in any case pending a decision on the merits of any application filed without requiring the filing of a bond or other equivalent security.

(k) Any person who, except as permitted by law, willfully resists, prevents, impedes or interferes with the director or any of his or her agents in the performance of duties pursuant to this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year, or both.

§22-3-18. Approval, denial, revision and prohibition of permit.

(a) Upon the receipt of a complete surface-mining application or significant revision or renewal thereof, including public notification and an opportunity for a public hearing, the director shall grant, require revision of, or deny the application for a permit within sixty days and notify the applicant in writing of the decision. The applicant for a permit, or revision of a permit, has the burden of establishing that the application is in compliance with all the requirements of this article and the rules promulgated hereunder.

(b) No permit or significant revision of a permit may be approved unless the applicant affirmatively demonstrates and the director finds in writing on the basis of the information set forth in the application or from information otherwise available which shall be documented in the approval and made available to the applicant that:

(1) The permit application is accurate and complete and that all the requirements of this article and rules thereunder have been complied with;

(2) The applicant has demonstrated that reclamation as required by this article can be accomplished under the reclamation plan contained in the permit application;

(3) The assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance, as specified in section nine of this article, has been made by the director and the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area;

(4) The area proposed to be mined is not included within an area designated unsuitable for surface-mining pursuant to section twenty-two of this article or is not within an area under administrative study by the director for such designation; and

(5) In cases where the private mineral estate has been severed from the private surface estate, the applicant has submitted: (A) The written consent of the surface owner to the extraction of coal by surface-mining; or (B) a conveyance that expressly grants or reserves the right to extract the coal by surface-mining; or (C) if the conveyance does not expressly grant the right to extract coal by surface-mining, the surface subsurface legal relationship shall be determined in accordance with applicable law: Provided, That nothing in this article shall be construed to authorize the director to adjudicate property rights disputes.

(c) Where information available to the division indicates that any surface-mining operation owned or controlled by the applicant is currently in violation of this article or other environmental laws or rules, the permit may not be issued until the applicant submits proof that such violation has been corrected or is in the process of being corrected to the satisfaction of the director or the department or agency which has jurisdiction over the violation, and no permit may be issued to any applicant after a finding by the director, after an opportunity for hearing, that the applicant or the operator specified in the application controls or has controlled mining operations with a demonstrated pattern of willful violations of this article or of other state or federal programs implementing the federal Surface-Mining Control and Reclamation Act of 1977, as amended, of such nature and duration with such irreparable damage to the environment as to indicate an intent not to comply with the provisions of this article or the federal Surface-Mining Control and Reclamation Act of 1977, as amended: Provided, That if the director finds that the applicant is or has been affiliated with, or managed or controlled by, or is or has been under the common control of, other than as an employee, a person who has had a surface-mining permit revoked or bond or other security forfeited for failure to reclaim lands as required by the laws of this state, he or she may not issue a permit to the applicant: Provided, however, That subject to the discretion of the director and based upon a petition for reinstatement, permits may be issued to any applicant if: (1) After the revocation or forfeiture, the operator whose permit has been revoked or bond forfeited has paid into the special reclamation fund any additional sum of money determined by the director to be adequate to reclaim the disturbed area; (2) the violations which resulted in the revocation or forfeiture have not caused irreparable damage to the environment; and (3) the director is satisfied that the petitioner will comply with this article.

(d)(1) In addition to finding the application in compliance with subsection (b) of this section, if the area proposed to be mined contains prime farmland, the director may, pursuant to rules promulgated hereunder, grant a permit to mine on prime farmland if the operator affirmatively demonstrates that the operator has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management, and can meet the soil reconstruction standards in subdivision (7), subsection (b), section thirteen of this article. Except for compliance with subsection (b) of this section, the requirements of this subdivision apply to all permits issued after August 3, 1977.

(2) Nothing in this subsection applies to any permit issued prior to August 3, 1977, or to any revisions or renewals thereof, or to any existing surface-mining operations for which a permit was issued prior to said date.

(e) If the director finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the state with a similar type of operation upon land with similar overburden shows that one or more of the following conditions cannot feasibly be prevented: (1) Substantial deposition of sediment in stream beds; (2) landslides; or (3) acid-water pollution, the director may delete such part of the land described in the application upon which such overburden exists.

(f) The prohibition of subsection (c) of this section may not apply to a permit application due to any violation resulting from an unanticipated event or condition at a surface coal mine eligible for remining under a permit held by the applicant.

§22-3-19. Permit revision and renewal requirements; incidental boundary revisions; requirements for transfer; assignment and sale of permit rights; operator reassignment; and procedures to obtain inactive status.

(a)(1) Any valid permit issued pursuant to this article carries with it the right of successive renewal upon expiration with respect to areas within the boundaries of the existing permit. The holders of the permit may apply for renewal and the renewal shall be issued: Provided, That on application for renewal, the burden is on the opponents of renewal, unless it is established that and written findings by the secretary are made that: (A) The terms and conditions of the existing permit are not being satisfactorily met: Provided, however, That if the permittee is required to modify operations pursuant to mining or reclamation requirements which become applicable after the original date of permit issuance, the permittee shall be provided an opportunity to submit a schedule allowing a reasonable period to comply with such revised requirements; (B) the present surface mining operation is not in compliance with the applicable environmental protection standards of this article; (C) the renewal requested substantially jeopardizes the operator's continuing responsibility on existing permit areas; (D) the operator has not provided evidence that the bond in effect for said operation will continue in effect for any renewal requested as required pursuant to sections eleven or twelve of this article; or (E) any additional revised or updated information as required pursuant to rules promulgated by the secretary has not been provided.

(2) If an application for renewal of a valid permit includes a proposal to extend the surface mining operation beyond the boundaries authorized in the existing permit, that portion of the application for renewal which addresses any new land area is subject to the full standards of this article, which includes, but is not limited to: (A) Adequate bond; (B) a map showing the disturbed area and facilities; and (C) a reclamation plan.

(3) Any permit renewal shall be for a term not to exceed the period of time for which the original permit was issued. Application for permit renewal shall be made at least one hundred twenty days prior to the expiration of the valid permit.

(4) Any renewal application for an active permit shall be on forms prescribed by the secretary and shall be accompanied by a filing fee of $3,000. The application shall contain such information as the secretary requires pursuant to rule.

(b)(1) During the term of the permit, the permittee may submit to the secretary an application for a revision of the permit, together with a revised reclamation plan.

(2) An application for a significant revision of a permit is subject to all requirements of this article and rules promulgated pursuant thereto and shall be accompanied by a filing fee of $2,00.

(3) Any extension to an area already covered by the permit, except incidental boundary revisions, shall be made by application for another permit. If the permittee desires to add the new area to his or her existing permit in order to have existing areas and new areas under one permit, the secretary may so amend the original permit: Provided, That the application for the new area is subject to all procedures and requirements applicable to applications for original permits under this article and a filing fee of $550.

(c) The secretary shall review outstanding permits of a five-year term before the end of the third year of the permit. Other permits shall be reviewed within the time established by rules. The secretary may require reasonable revision or modification of the permit following review: Provided, That such revision or modification shall be based upon written findings and shall be preceded by notice to the permittee of an opportunity for hearing.

(d) No transfer, assignment or sale of the rights granted under any permit issued pursuant to this article may be made without the prior written approval of the secretary, application for which shall be accompanied by a filing fee of $1,500 for transfer or $1,500 for assignment.

(e) Each request for inactive status shall be submitted on forms prescribed by the secretary, shall be accompanied by a filing fee of $2,00, and shall be granted in accordance with the procedure established in the Surface Mining and Reclamation Rule.

(f) The secretary shall promulgate for review and consideration by the West Virginia Legislature legislative rules or emergency rules during the 2016 Regular Session of the West Virginia Legislature revisions to rules for granting inactive status under this article. The secretary shall specifically consider the adoption of federal standards codified at 30 C. F. R. §816.131 (1979) and 30 C. F. R. §817.131 (1979).

§22-3-20. Public notice; written objections; public hearings; informal conferences.

(a) At the time of submission of an application for a surface mining permit or a significant revision of an existing permit pursuant to the provisions of this article, the applicant shall submit to the department a copy of the required advertisement for public notice on a form and in a manner prescribed by the secretary, which manner may be electronic.  At the time of submission, the applicant shall place the advertisement in a local newspaper of general circulation in the county of the proposed surface-mining operation at least once a week for four consecutive weeks. The secretary shall notify various appropriate federal and state agencies as well as local governmental bodies, planning agencies, and sewage and water treatment authorities or water companies in the locality in which the proposed surface mining operation will take place, notifying them of the operator’s intention to mine on a particularly described tract of land and indicating the application number and where a copy of the proposed mining and reclamation plan may be inspected. These local bodies, agencies, authorities, or companies may submit written comments within a reasonable period established by the secretary on the mining application with respect to the effect of the proposed operation on the environment which is within their area of responsibility. The comments shall be immediately transmitted by the secretary to the applicant and to the appropriate office of the department. The secretary shall provide the name and address of each applicant to the Commissioner of the Division of Labor who shall, within 15 days from receipt, notify the secretary as to the applicant’s compliance, if necessary, pursuant to §21-5-14 of this code.

(b) Any person having an interest which is or may be adversely affected, or the officer or head of any federal, state, or local governmental agency, has the right to file written objections to the proposed initial or revised permit application for a surface mining operation with the secretary within 30 days after the last publication of the advertisement required in §22-3-20(a) of this code. The objections shall be immediately transmitted to the applicant by the secretary and shall be made available to the public. If written objections are filed and an informal conference requested within 30 days of the last publication of the above notice, the secretary shall then hold a conference in the locality of the proposed mining within a reasonable time after the close of the public comment period. Those requesting the conference shall be notified and the date, time, and location of the informal conference shall also be advertised by the secretary in a newspaper of general circulation in the locality on a form and in a manner prescribed by the secretary, which manner may be electronic, at least two weeks prior to the scheduled conference date. The secretary may arrange with the applicant, upon request by any party to the conference proceeding, access to the proposed mining area for the purpose of gathering information relevant to the proceeding. An electronic or stenographic record shall be made of the conference proceeding unless waived by all parties. The record shall be maintained and shall be accessible to the parties at their respective expense until final release of the applicant’s bond or other security posted in lieu thereof. The secretary’s authorized agent shall preside over the conference. In the event all parties requesting the informal conference stipulate agreement prior to the conference and withdraw their request, a conference need not be held.

§22-3-21. Decision of secretary on permit application; hearing thereon.

(a) If an informal conference has been held, the secretary shall issue and furnish the applicant for a permit and persons who were parties to the informal conference with the written finding granting or denying the permit, in whole or in part, and stating the reasons therefor within sixty days of the informal conference, notwithstanding the requirements of subsection (a), section eighteen of this article.

(b) If the application is approved, the permit shall be issued. If the application is disapproved, specific reasons therefor must be set forth in the notification. Within thirty days after the applicant is notified of the secretary's decision, the applicant or any person with an interest which is or may be adversely affected may request a hearing before the Surface Mine Board as provided in article one, chapter twenty-two-b of this code to review the secretary's decision.

§22-3-22. Designation of areas unsuitable for surface mining; petition for removal of designation; prohibition of surface mining on certain areas; exceptions; taxation of minerals underlying land designated unsuitable.

(a) The director shall establish a planning process to enable objective decisions based upon competent and scientifically sound data and information as to which, if any, land areas of this state are unsuitable for all or certain types of surface-mining operations pursuant to the standards set forth in subdivisions (1) and (2) of this subsection: Provided, That such designation shall not prevent prospecting pursuant to section seven of this article on any area so designated.

(1) Upon petition pursuant to subsection (b) of this section, the director shall designate an area as unsuitable for all or certain types of surface-mining operations, if it determines that reclamation pursuant to the requirements of this article is not technologically and economically feasible.

(2) Upon petition pursuant to subsection (b) of this section, a surface area may be designated unsuitable for certain types of surface-mining operations, if the operations: (A) Conflict with existing state or local land use plans or programs; (B) affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific and aesthetic values and natural systems; (C) affect renewable resource lands, including significant aquifers and aquifer recharge areas, in which the operations could result in a substantial loss or reduction of long-range productivity of water supply, food or fiber products; or (D) affect natural hazard lands in which the operations could substantially endanger life and property. Such lands shall include lands subject to frequent flooding and areas of unstable geology.

(3) The director shall develop a process which includes: (A) The review of surface-mining lands; (B) a database and an inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of surface-mining operations; (C) a method for implementing land use planning decisions concerning surface-mining operations; and (D) proper notice and opportunities for public participation, including a public hearing prior to making any designation or redesignation pursuant to this section.

(4) Determinations of the unsuitability of land for surface mining, as provided for in this section, shall be integrated as closely as possible with present and future land use planning and regulation processes at federal, state and local levels.

(5) The requirements of this section do not apply to lands on which surface-mining operations were being conducted on August 3, 1977, or under a permit issued pursuant to this article, or where substantial legal and financial commitments in the operations were in existence prior to January 4, 1977.

(b) Any person having an interest which is or may be adversely affected has the right to petition the director to have an area designated as unsuitable for surface-mining operations or to have such a designation terminated. The petition shall contain allegations of fact with supporting evidence which would tend to establish the allegations. After receipt of the petition, the director shall immediately begin an administrative study of the area specified in the petition. Within ten months after receipt of the petition, the director shall hold a public hearing in the locality of the affected area after appropriate notice and publication of the date, time and location of the hearing. After the director or any person having an interest which is or may be adversely affected has filed a petition and before the hearing required by this subsection, any person may intervene by filing allegations of fact with supporting evidence which would tend to establish the allegations. Within sixty days after the hearing, the director shall issue and furnish to the petitioner and any other party to the hearing, a written decision regarding the petition and the reasons therefor. In the event that all the petitioners stipulate agreement prior to the requested hearing and withdraw their request, the hearing need not be held.

(c) Prior to designating any land areas as unsuitable for surface-mining operations, the director shall prepare a detailed statement on: (1) The potential coal resources of the area; (2) the demand for the coal resources; and (3) the impact of the designation on the environment, the economy and the supply of coal.

(d) After August 3, 1977, and subject to valid existing rights, no surface-mining operations, except those which existed on that date, shall be permitted:

(1) On any lands in this state within the boundaries of units of the national park system, the national wildlife refuge systems, the national system of trails, the national wilderness preservation system, the wild and scenic rivers system, including study rivers designated under section five-a of the Wild and Scenic Rivers Act, and national recreation areas designated by act of Congress;

(2) Which will adversely affect any publicly owned park or places included in the national register of historic sites, or national register of natural landmarks unless approved jointly by the director and the federal, state or local agency with jurisdiction over the park, the historic site or natural landmark;

(3) Within one hundred feet of the outside right-of-way line on any public road, except where mine access roads or haulage roads join such right-of-way line, and except that the director may permit the roads to be relocated or the area affected to lie within one hundred feet of the road if, after public notice and an opportunity for a public hearing in the locality, the director makes a written finding that the interests of the public and the landowners affected thereby will be protected;

(4) Within three hundred feet from any occupied dwelling, unless waived by the owner thereof, or within three hundred feet of any public building, school, church, community or institutional building, public park, or within one hundred feet of a cemetery; or

(5) On any federal lands within the boundaries of any national forest: Provided, That surface coal mining operations may be permitted on the lands if the secretary of the interior finds that there are no significant recreational, timber, economic or other values which may be incompatible with the surface-mining operations: Provided, however, That the surface operations and impacts are incident to an underground coal mine.

(e) Notwithstanding any other provision of this code, the coal underlying any lands designated unsuitable for surface-mining operations under any provisions of this article or underlying any land upon which mining is prohibited by any provisions of this article shall be assessed for taxation purposes according to their value and the Legislature hereby finds that the coal has no value for the duration of the designation or prohibition unless suitable for underground mining not in violation of this article: Provided, That the owner of the coal shall forthwith notify the proper assessing authorities if the designation or prohibition is removed so that the coal may be reassessed.

§22-3-22a. Blasting restrictions; site specific blasting design requirement.

(a) For purposes of this section, the term "production blasting" means blasting that removes the overburden to expose underlying coal seams and does not include construction blasting.

(b) For purposes of this section, the term "construction blasting" means blasting to develop haul roads, mine access roads, coal preparation plants, drainage structures or underground coal mine sites and does not include production blasting.

(c) For purposes of this section, the term "protected structure" means any of the following structures that are situated outside the permit area: An occupied dwelling; a temporarily unoccupied dwelling which has been occupied within the past ninety days; a public building; a structure for commercial purposes; a school; a church; a community or institutional building; and a public park or a water well.

(d) Production blasting is prohibited within three hundred feet of a protected structure or within one hundred feet of a cemetery.

(e) Blasting within one thousand feet of a protected structure shall have a site-specific blast design approved by the Division of Mining and Reclamation. The site-specific blast design shall limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts to do the following:

(1) Prevent injury to persons; (2) prevent damage to public and private property outside the permit area; (3) prevent adverse impacts on any underground mine; (4) prevent change in the course, channel or availability of ground or surface water outside the permit area; and (5) reduce dust outside the permit area.

In the development of a site-specific blasting plan, consideration shall be given, but is not limited to, the physical condition, type and quality of construction of the protected structure, the current use of the protected structure and the concerns of the owner or occupant living in the protected structures identified in the blasting schedule notification area.

(f) An owner or occupant of a protected structure may waive the blasting prohibition within three hundred feet. If a protected structure is occupied by a person other than the owner, both the owner and the occupant of the protected structure shall waive the blasting prohibition within three hundred feet in writing. The operator shall send copies of all written waivers executed pursuant to this subsection to the Division of Mining and Reclamation. Written waivers executed and filed with the Division of Mining and Reclamation are valid during the life of the permit or any renewals of the permit and are enforceable against any subsequent owners or occupants of the protected structure.

(g) The provisions of this section do not apply to the following: (1) Underground coal mining operations; (2) the surface operations and surface impacts incident to an underground coal mine; and (3) the extraction of minerals by underground mining methods or the surface impacts of the underground mining methods: Provided, That nothing contained in this section may be construed to exempt any coal mining operation from the general performance standards as contained in section thirteen of this article and any rules promulgated pursuant to said section.

§22-3-23. Release of bond or deposits; application; notice; duties of secretary; public hearings; final maps on grade release.

(a) The permittee may file a request with the secretary for the release of a bond or deposit. The permittee shall publish an advertisement regarding the request for release in the same manner as is required of advertisements for permit applications. A copy of the advertisement shall be submitted to the secretary as part of any bond release application and shall contain a notification of the precise location of the land affected, the number of acres, the permit and the date approved, the amount of the bond filed and the portion sought to be released, the type and appropriate dates of reclamation work performed and a description of the results achieved as they relate to the permittee’s approved reclamation plan. In addition, as part of any bond release application, the permittee shall submit copies of letters which the permittee has sent to adjoining property owners, local government bodies, planning agencies, sewage and water treatment authorities or water companies in the locality in which the surface mining operation is located, notifying them of the permittee’s intention to seek release from the bond. Any request for grade release shall also be accompanied by final maps.

(b) Upon receipt of the application for bond release, the secretary, within thirty days, taking into consideration existing weather conditions, shall conduct an inspection and evaluation of the reclamation work involved. The evaluation shall consider, among other things, the degree of difficulty to complete any remaining reclamation, whether pollution of surface and subsurface water is occurring, the probability of continuance or future occurrence of the pollution and the estimated cost of abating the pollution. The secretary shall notify the permittee in writing of his or her decision to release or not to release all or part of the bond or deposit within sixty days from the date of the initial publication of the advertisement if no public hearing is requested. If a public hearing is held, the secretary’s decision shall be issued within thirty days thereafter.

(c) If the secretary is satisfied that reclamation covered by the bond or deposit or portion thereof has been accomplished as required by this article, he or she may release the bond or deposit, in whole or in part, according to the following schedule:

(1) When the operator completes the backfilling, regrading and drainage control of a bonded area in accordance with the operator’s approved reclamation plan, the release of sixty percent of the bond or collateral for the applicable bonded area.

(2) After revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan. When determining the amount of bond to be released after successful revegetation has been established, the secretary shall retain that amount of bond for the revegetated area which would be sufficient for a third party to cover the cost of reestablishing revegetation and for the period specified for operator responsibility in section thirteen of this article. No part of the bond or deposit shall be released under this subsection so long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by subdivision (10), subsection (b), section thirteen of this article or until soil productivity for prime farm lands has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to subdivision (15), subsection (a), section nine of this article. Where a silt dam is to be retained as a permanent impoundment pursuant to subdivision (8), subsection (b), section thirteen of this article, the portion of bond may be released under this subdivision so long as provisions for sound future maintenance by the operator or the landowner have been made with the secretary.

(3) When the operator has completed successfully all surface coal mining and reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the period specified for operator responsibility in section thirteen of this article: Provided, That no bond shall be fully released until all reclamation requirements of this article are fully met: Provided, however, That the release may be made where the quality of the untreated post-mining water discharged is better than or equal to the premining water quality discharged from the mining site where expressly authorized by legislative rule promulgated pursuant to section three, article one of this chapter.

(d) If the secretary disapproves the application for release of the bond or portion thereof, the secretary shall notify the permittee, in writing, stating the reasons for disapproval and recommending corrective actions necessary to secure the release and notifying the operator of the right to a hearing.

(e) When any application for total or partial bond release is filed with the secretary, he or she shall notify the municipality in which a surface-mining operation is located by registered or certified mail at least thirty days prior to the release of all or a portion of the bond.

(f) Any person with a valid legal interest which is or may be adversely affected by release of the bond or the responsible officer or head of any federal, state or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social or economic impact involved in the operation, or is authorized to develop and enforce environmental standards with respect to the operations, has the right to file written objections to the proposed bond release and request a hearing with the secretary within thirty days after the last publication of the permittee’s advertisement. If written objections are filed and a hearing requested, the secretary shall inform all of the interested parties of the time and place of the hearing and shall hold a public hearing in the locality of the surface-mining operation proposed for bond release within three weeks after the close of the public comment period. The date, time and location of the public hearing shall also be advertised by the secretary in a newspaper of general circulation in the same locality.

(g) Without prejudice to the rights of the objectors, the applicant, or the responsibilities of the secretary pursuant to this section, the secretary may hold an informal conference to resolve any written objections and satisfy the hearing requirements of this section thereby.

(h) For the purpose of the hearing, the secretary has the authority and is hereby empowered to administer oaths, subpoena witnesses and written or printed materials, compel the attendance of witnesses, or production of materials, and take evidence, including, but not limited to, inspections of the land affected and other surface-mining operations carried on by the applicant in the general vicinity. A verbatim record of each public hearing required by this section shall be made and a transcript made available on the motion of any party or by order of the secretary at the cost of the person requesting the transcript.

(i) The secretary shall propose rules for legislative approval during the 2018 regular session of the Legislature in accordance with the provisions of article three, chapter twenty-nine-a of the code and revisions to the Legislative Rule entitled West Virginia Surface Mining Reclamation Rule, Title 38, Series 2 of the West Virginia Code of State Rules, to implement the revisions to this article made during the 2017 legislative session. The secretary shall specifically consider the adoption of corresponding federal standards codified at 30 C. F. R. 700 et. seq.

§22-3-24. Water rights and replacement; waiver of replacement.

(a) Nothing in this article affects in any way the rights of any person to enforce or protect, under applicable law, the person's interest in water resources affected by a surface mining operation.

(b) Any operator shall replace the water supply of an owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution or interruption proximately caused by the surface mining operation, unless waived by the owner.

(c) There is a rebuttable presumption that a mining operation caused damage to an owner's underground water supply if the inspector determines the following: (1) Contamination, diminution or damage to an owner's underground water supply exists; and (2) a preblast survey was performed, consistent with the provisions of section thirteen-a of this article, on the owner's property, including the underground water supply, that indicated that contamination, diminution or damage to the underground water supply did not exist prior to the mining conducted at the mining operation.

(d) The operator conducting the mining operation shall: (1) Provide an emergency drinking water supply within twenty-four hours; (2) provide temporary water supply within seventy-two hours; (3) within thirty days begin activities to establish a permanent water supply or submit a proposal to the secretary outlining the measures and timetables to be utilized in establishing a permanent supply. The total time for providing a permanent water supply may not exceed two years. If the operator demonstrates that providing a permanent replacement water supply cannot be completed within two years, the secretary may extend the time frame on case-by-case basis; and (4) pay all reasonable costs incurred by the owner in securing a water supply.

(e) An owner aggrieved under the provisions of subsections (b), (c) or (d) of this section may seek relief in court or pursuant to the provisions of section five, article three-a of this chapter.

(f) The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the requirements of this section.

(g) The provisions of subsection (c) of this section shall not apply to the following: (1) Underground coal mining operations; (2) the surface operations and surface impacts incident to an underground coal mine; and (3) the extraction of minerals by underground mining methods or the surface impacts of the underground mining methods.

(h) Notwithstanding the denial of the operator of responsibility for the damage of the owners water supply or the status of any appeal on determination of liability for the damage to the owners water supply, the operator may not discontinue providing the required water service until authorized by the division.

Notwithstanding the provisions of subsection (g) of this section, on and after the effective date of the amendment and reenactment of this section during the regular legislative session of two thousand six, the provisions of this section shall apply to all mining operations for water replacement claims resulting from mining operations regardless of when the claim arose.

§22-3-25. Citizen suits; order of court; damages.

(a) Except as provided in subsection (b) of this section, any person having an interest which is or may be adversely affected may commence a civil action in the circuit court of the county to which the surface mining operation is located on the person's own behalf to compel compliance with this article:

(1) Against the State of West Virginia or any other governmental instrumentality or agency thereof, to the extent permitted by the West Virginia Constitution and by law, which is alleged to be in violation of the provisions of this article or any rule, order or permit issued pursuant thereto, or against any other person who is alleged to be in violation of any rule, order or permit issued pursuant to this article; or

(2) Against the director, division, surface mine board or appropriate division employees, to the extent permitted by the West Virginia Constitution and by law, where there is alleged a failure of the above to perform any act or duty under this article which is not discretionary.

(b) No action may be commenced:

(1) Under subdivision (1), subsection (a) of this section: (A) Prior to sixty days after the plaintiff has given notice in writing of the violation to the director or to any alleged violator, or (B) if the director has commenced and is diligently prosecuting a civil action in a circuit court to require compliance with the provisions of this article or any rule, order or permit issued pursuant to this article; or

(2) Under subdivision (2), subsection (a) of this section prior to sixty days after the plaintiff has given notice in writing of such action to the director, except that such action may be brought immediately after such notification in the case where the violation or order complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff.

(c) Any action respecting a violation of this article or the rules thereunder may be brought in any appropriate circuit court. In such action under this section, the director, if not a party, may intervene as a matter of right.

(d) The court in issuing any final order in any action brought pursuant to subsection (a) of this section may award costs of litigation, including reasonable attorney and expert witness fees, to any party whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security.

(e) Nothing in this section restricts any right which any person or class of persons may have under any statute or common law to seek enforcement of any of the provisions of this article and the rules thereunder or to seek any other relief.

(f) Any person or property who is injured through the violation by any operator of any rule, order or permit issued pursuant to this article may bring an action for damages, including reasonable attorney and expert witness fees, in any court of competent jurisdiction. Nothing in this subsection affects the rights established by or limits imposed under state workers' compensation laws.

(g) This section applies to violations of this article and the rules promulgated thereto, or orders or permits issued pursuant to said article insofar as said violations, rules, orders and permits relate to surface mining operations.

§22-3-26. Surface mining operations not subject to article.

The provisions of this article do not apply to any of the following activities:

(a) The extraction of coal by a landowner for the landowner's own noncommercial use from land owned or leased by the landowner.

(b) The extraction of coal as an incidental part of federal, state, county, municipal or other local government-financed highway or other construction: Provided, That the provisions of the construction contract require the furnishing of a suitable bond which provides for reclamation, wherever practicable, of the area affected by such extraction.

§22-3-27. Leasing of lands owned by state for surface mining of coal.

No land or interest in land owned by the state may be leased, and no present lease may be renewed by the state, nor any agency of the state, for the purpose of conducting surface mining operations thereon unless said lease or renewal has been first authorized by an act of the Legislature: Provided, That the provisions of this section do not apply to underground mining on such land.

§22-3-28. Special permits authorization for reclamation of existing abandoned coal processing waste piles; coal extraction pursuant to a government-financed reclamation contract; coal extraction as an incidental part of development of land for commercial, residential, industrial or civic use; no cost reclamation contract.

(a) Except where exempted by section twenty-six of this article, it is unlawful for any person to engage in surface-mining as defined in this article as an incident to the development of land for commercial, residential, industrial or civic use without having first obtained from the director a permit therefor as provided in section eight of this article, unless a special authorization therefor has been first obtained from the director as provided in this section.

Application for a special authorization to engage in surface-mining as an incident to the development of land for commercial, residential, industrial or civic use shall be made in writing on forms prescribed by the director and shall be signed and verified by the applicant. The application shall be accompanied by:

(1) A site preparation plan, prepared and certified by or under the supervision of a person approved by the director, showing the tract of land which the applicant proposes to develop for commercial, residential, industrial or civic use; the probable boundaries and areas of the coal deposit to be mined and removed from said tract of land incident to the proposed commercial, residential, industrial or civic use thereof; and such other information as prescribed by the director;

(2) A development plan for the proposed commercial, residential, industrial or civic use of said land;

(3) The name of owner of the surface of the land to be developed;

(4) The name of owner of the coal to be mined incident to the development of the land;

(5) A reasonable estimate of the number of acres of coal that would be mined as a result of the proposed development of said land: Provided, That in no event may such number of acres to be mined, excluding roadways, exceed five acres; and

(6) Such other information as the director may require to satisfy and assure the director that the surface-mining under special authorization is incidental or secondary to the proposed commercial, residential, industrial or civic use of said land.

(b) There shall be attached to the application for the special authorization a certificate of insurance certifying that the applicant has in force a public liability insurance policy issued by an insurance company authorized to do business in this state affording personal injury protection in accordance with subsection (d), section nine of this article.

The application for the special authorization shall also be accompanied by a bond, or cash or collateral securities or certificates of the same type, in the form as prescribed by the director and in the minimum amount of $2,000 per acre, for a maximum disturbance of five acres.

The bond shall be payable to the State of West Virginia and conditioned that the applicant complete the site preparation for the proposed commercial, residential, industrial or civic use of said land. At the conclusion of the site preparation, in accordance with the site preparation plan submitted with the application, the bond conditions are satisfied and the bond and any cash, securities or certificates furnished with said bond may be released and returned to the applicant. The filing fee for the special authorization is $500. The special authorization is valid for two years.

(c) The purpose of this section is to vest jurisdiction in the director, where the surface-mining is incidental or secondary to the preparation of land for commercial, residential, industrial or civic use and where, as an incident to such preparation of land, minerals must be removed, including, but not limited to, the building and construction of railroads, shopping malls, factory and industrial sites, residential and building sites and recreational areas. Anyone who has been issued a special authorization may not be issued an additional special authorization on the same or adjacent tract of land unless satisfactory evidence has been submitted to the director that such authorization is necessary to subsequent development or construction. As long as the operator complies with the purpose and provisions of this section, the other sections of this article are not applicable to the operator holding a special authorization: Provided, That the director shall promulgate rules establishing applicable performance standards for operations permitted under this section.

(d) The director may, in the exercise of his or her sound discretion, when not in conflict with the purposes and findings of this article and to bring about a more desirable land use or to protect the public and the environment, issue a reclamation contract solely for the removal of existing abandoned coal processing waste piles: Provided, That a bond and a reclamation plan is required for such operations.

(e) No person may engage in coal extraction pursuant to a government-financed reclamation contract without a valid surface-mining permit issued pursuant to this article unless such person affirmatively demonstrates that he is eligible to secure special authorization pursuant to this section to engage in a government-financed reclamation contract authorizing incidental and necessary coal extraction. The director shall determine eligibility before entering into a government-financed reclamation contract authorizing incidental and necessary coal extraction. The director may provide the special authorization as part of the government-financed reclamation contract: Provided, That the contract contains and does not violate the requirements of this section. The director may not be required to grant a special authorization to any eligible person. The director may, however, in his or her discretion, grant a special authorization allowing incidental and necessary coal extraction pursuant to a government-financed reclamation contract in accordance with this section.

Only eligible persons may secure special authorization to engage in incidental and necessary coal extraction pursuant to a government-financed reclamation contract. Any eligible person who proposes to engage in coal extraction pursuant to a government-financed reclamation contract may request and secure special authorization from the director to conduct such activities under this section. A special authorization can only be obtained if a clause is inserted in a government-financed reclamation contract authorizing such extraction and the person requesting such authorization has affirmatively demonstrated to the director's satisfaction that he or she has satisfied the provisions of this section. A special authorization shall only be granted by the director prior to the commencement of coal extraction on a project area. In order to be considered for a special authorization by the director, an eligible person must meet the permit eligibility requirements of this article and demonstrate at a minimum that:

(1) The primary purpose of the operation to be undertaken is the reclamation of abandoned or forfeited mine lands;

(2) The extraction of coal will be incidental and necessary to accomplish the reclamation of abandoned or forfeited mine lands pursuant to a government-financed reclamation contract;

(3) Incidental and necessary coal extraction will be confined to the project area being reclaimed; or

(4) All coal extraction and reclamation activity undertaken pursuant to a government-financed reclamation project will be accomplished pursuant to the applicable environmental protection performance standards and conditions included in the government-financed reclamation contract.

Prior to commencing coal extraction pursuant to a government-financed reclamation project, the contractor shall file with the director a performance bond conditioned upon the contractor's performance of all the requirements of the government-financed reclamation contract pursuant to this article. For a no cost reclamation contract, the criteria for establishing the amount of the performance bond shall be the engineering estimate, determined by the director: Provided, That the director may establish a lesser bond amount for long term, no cost reclamation projects in which the reclamation schedule extends beyond two years. In these contracts, the director may in the alternative establish a bond amount which reflects the cost of the proportionate amount of reclamation which will occur during a specified period. The performance bond which is provided by the contractor under a federally financed or state financed reclamation contract shall be deemed to satisfy the requirements of this section: Provided, however, That the amount of such bond is equivalent to or greater than the amount determined by the criteria set forth in this subsection.

(f) Any person engaging in coal extraction pursuant to this section is subject to the following:

(1) Payment of all applicable taxes and fees related to coal extraction;

(2) Replacement or restoration of the water supply of an owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where such supply has been affected by contamination, diminution or interruption proximately caused by coal extraction;

(3) Extraction pursuant to this section cannot be initiated without the consent of the surface owner for right of entry and consent of the mineral owner for extraction of coal.

§22-3-29. Experimental practices.

In order to encourage advances in surface mining and reclamation practices or to allow post-mining land use for industrial, commercial, residential, agricultural or public use, including recreational facilities, the director may authorize departures, in individual cases and on an experimental basis, from the environmental protection performance standards promulgated under this article. Such departures may be authorized if the experimental practices are potentially more or at least as environmentally protective during and after surface-mining operations as those required by promulgated standards; the surface-mining operations approved for particular land use or other purposes are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practices; and the experimental practices do not reduce the protection afforded health or safety of the public below that provided by promulgated standards.

§22-3-30. Certification and training of blasters.

The director is responsible for the training, examination and certification of persons engaging in or directly responsible for blasting or use of explosives in surface mining operations.

§22-3-30a. Blasting requirements; liability and civil penalties in the event of property damage.

(a) Blasting shall be conducted in accordance with the rules and laws established to regulate blasting.

(b) If the  Department of Environmental Protection establishes after an inspection that a blast at a surface coal mine operation as defined by the provisions of subdivision (2), subsection (a), section thirteen-a of this article was not in compliance with the regulations governing blasting parameters and resulted in property damage to a protected structure, as defined in section twenty-two-a of this article, other than water wells, the following penalties shall be imposed for each permit area or contiguous permit areas where the blasting was out of compliance:

(1) For the first offense, the operator shall be assessed a penalty of not less than $1,000 nor more than $5,000.

(2) For the second offense and each subsequent offense within one year of the first offense, the surface mining operator shall be assessed a penalty of not less than $5,000 nor more than $10,000.

(3) For the third offense and any subsequent offense within one year of the first offense, or for the failure to pay any assessment set forth within a reasonable time established by the secretary, the surface mining operator's permit is subject to an immediate issuance of a cessation order, as set out in section sixteen of this article. The cessation order shall only be released upon written order of the secretary of the Department of Environmental Protection when the following conditions have been met:

(A) A written plan has been established and filed with the secretary assuring that additional violations will not occur;

(B) The permittee has provided compensation for the property damages or the assurance of adequate compensation for the property damages that have occurred; and

(C) A permittee shall provide such monetary and other assurances as the secretary considers appropriate to compensate for future property damages. The monetary assurances required shall be in an amount at least equal to the amount of compensation required in paragraph (B), subdivision (3) of this subsection.

(4) In addition to the penalties described in subdivisions (1), (2) and (3) of this subsection for the second and subsequent offenses on any one permitted area regardless of the time period, the owner of the protected structure is entitled to a rebuttable presumption that the property damage is a result of the blast if: (A) A preblast survey was performed; and (B) the blasting site to which the second or subsequent offense relates is within seven tenths of a mile of the protected structure.

(5) No more than one offense may arise out of any one shot. For purposes of this section, “shot” means a single blasting event composed of one or multiple detonations of explosive material or the assembly of explosive materials for this purpose. One "shot" may be composed of numerous explosive charges detonated at intervals measured in milliseconds.

(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the Department of Environmental Protection may not impose penalties, as provided for in subsection (b) of this section, on an operator for the violation of any rule identified in subsection (b) of this section that is merely administrative in nature.

(d) The remedies provided in this section are not exclusive and may not bar an owner or occupant from any other remedy accorded by law.

(e) Where inspection by the  Department of Environmental Protection establishes that production blasting, in violation of section twenty-two-a of this article, was done within three hundred feet of a protected structure, without an approved site-specific blast design or not in accordance with an approved site-specific blast design for production blasting within one thousand feet of any protected structure as defined in section twenty-two-a of this article or within one hundred feet of a cemetery, the monetary penalties and revocation, as set out in subsection (b) of this section, apply.

(f) All penalties and liabilities as set forth in subsection (b) of this section shall be assessed by the secretary, collected by the secretary and deposited with the Treasurer of the State of West Virginia in the General School Fund.

(g) The secretary shall propose rules for legislative approval pursuant to article three, chapter twenty-nine-a of this code for the implementation of this section.

(h) The provisions of this section do not apply to the extraction of minerals by underground mining methods: Provided, That nothing contained in this section may be construed to exempt any coal mining operation from the general performance standards as contained in section thirteen of this article and any rules promulgated pursuant thereto.

§22-3-31. Conflict of interest prohibited; criminal penalties therefor; employee protection.

(a) No employee of the division engaged in the enforcement or administration of this article or employee of the surface mine board performing any function or duty under this article shall have a direct or indirect financial interest in any surface-mining operation. Whoever knowingly violates the provisions of this subsection is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $2,500, or imprisoned in the county jail not more than one year, or both fined and imprisoned. The director shall establish methods by which the provisions of this subsection will be monitored and enforced, including appropriate provisions for the filing and the review of statements and supplements thereto concerning any financial interest which may be affected by this subsection.

(b) No person shall discharge or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that the employee or representative has filed, instituted, or caused to be filed or instituted, any proceeding under this article, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this article.

(c) Any employee or a representative of employees who has reason to believe that he or she has been fired or otherwise discriminated against by any person in violation of subsection (b) of this section may, within thirty days after the alleged violation occurs, petition to the surface mine board for a review of the firing or discrimination. The employee or representative is the petitioner and shall serve a copy of the petition upon the person or operator who will be the respondent. The participants shall be given ten days' written notice of the hearing before the board and the hearing shall be held within thirty days of the filing of the petition. The board shall have the same powers and shall hear the petition in the same manner as provided in article one, chapter twenty-two-b of this code.

(d) If the board finds that the alleged violation did occur, it shall issue an order incorporating therein findings of fact and conclusions requiring the participant committing the violation to take such affirmative action to abate the violation by appropriate action, including, but not limited to, the hiring or reinstatement of the employee or representative to his former position with compensation. If the board finds no violation, it shall issue a finding to that effect. Orders issued by the board under this section shall be subject to judicial review in the same manner as other orders of the board issued under this article or article one, chapter twenty-two-b of this code.

(e) Whenever an order is issued under this section to abate any violation, at the request of the petitioner a sum equal to the aggregate costs and expenses, including attorneys' fees to have been reasonably incurred by the petitioner for, or in connection with, the institution and prosecution of the proceedings, shall be assessed against the person committing the violation.

§22-3-32. Special tax on coal production; mines and minerals operations fund.

(a) Imposition of tax. -- Upon every person in this state engaging in the privilege of severing, extracting, reducing to possession or producing coal for sale, profit or commercial use, there is hereby imposed an annual tax equal to 2¢ per ton of coal produced by such person for sale, profit or commercial use during such person's taxable year. The special tax imposed by this section is in addition to all other taxes levied by law. In no event may a ton of coal be taxed more than once under the provisions of this section.

(b) Payment and collection of tax. -- The tax imposed by this section shall be collected by the Tax Commissioner in the same manner, at the same time, and upon the same tonnage as the minimum severance tax imposed by article twelve-b, chapter eleven of this code is collected: Provided, That under no circumstance shall this tax be construed to be an increase in either the minimum severance tax imposed by said article twelve-b or the severance tax imposed by article thirteen of said chapter eleven. Every person liable for payment of this special tax shall pay the amount due without notice or demand for payment. The Tax Commissioner shall provide to the director a quarterly listing of all persons known to be delinquent in payment of the special tax. The director may take such delinquencies into account in making determinations on the issuance, renewal or revision of any permit.

(c) Mining and Reclamation Operations Fund. -- The special fund previously created in the state Treasury known as the Mines and Minerals Operations Fund is renamed the Mining and Reclamation Operations Fund. The Tax Commissioner shall, at least quarterly, deposit into the fund the net amount of tax collected under this section, including any additions to tax, penalties and interest collected with respect thereto. The treasurer shall deposit all moneys deposited in or credited to this fund in an interest-bearing account, with the amount of interest earned being credited to this fund as it is earned. The moneys in this special fund shall be expended solely for the purposes of carrying out those statutory duties relating to the enforcement of environmental regulatory programs for the coal industry as imposed by this chapter and the federal Surface Mining Control and Reclamation Act of 1977 and any amendments thereto. Expenditures from the fund are not authorized from collections but are to be made only in accordance with appropriations by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions set forth in article two, chapter five-a of this code.

(d) General procedure and administration. -- Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten, chapter eleven of the code applies to the special tax imposed by this section with like effect as if such act were applicable only to the special tax imposed by this section and were set forth in extenso in this article, notwithstanding the provisions of section three of said article ten.

(e) Crimes and penalties. -- Each and every provision of the West Virginia Tax Crimes and Penalties Act set forth in article nine of said chapter eleven applies to the special tax imposed by this section with like effect as if such act were applicable only to the special tax imposed by this section and set forth in extenso in this article, notwithstanding the provisions of section two of said article nine.

(f) Effective date. -- The special tax imposed by this section applies to all coal produced in this state after September 30, 1991.

§22-3-32a. Special tax on coal; clarification of imposition of tax; procedures for collection and administration of tax.

(a) It is the intent of the Legislature to clarify that from the date of its enactment, the special tax on coal imposed pursuant to the provisions of section thirty-two of this article is intended to be in addition to any other taxes imposed on every person in this state engaging in the privilege of severing, extracting, reducing to possession or producing coal for sale profit or commercial use including, but not limited to the tax imposed by section eleven of this article, the tax imposed by article twelve-b, chapter eleven of this code, the taxes imposed by article thirteen-a of said chapter eleven and the tax imposed by article thirteen-v of said chapter.

(b) Notwithstanding any other provisions of section thirty-two of this article to the contrary, under no circumstance shall an exemption from the taxes imposed by article twelve-b, thirteen-a or thirteen-v, chapter eleven of this code be construed to be an exemption from the tax imposed by section thirty-two of this article.

(c) When coal included in the measure of the tax imposed by section thirty-two of this article is exempt from the tax imposed by article twelve-b, chapter eleven of this code, the tax imposed by section thirty-two of this article shall be paid to the Tax Commissioner in accordance with the provisions of sections four through fourteen, inclusive, article twelve-b, chapter eleven of this code, which provisions are hereby incorporated by reference in this article.

§22-3-33. Attorney fees and costs.

(a) As a result of any administrative proceeding under this article, at the request of any person, a sum equal to the aggregate amount of all costs and expenses, including attorney fees, as determined by the court or the Surface Mine Board to have been reasonably incurred by the requesting person for or in connection with his or her participation in the administrative proceeding, including any judicial review of agency actions, may be assessed against either party as the court, resulting from judicial review or the Surface Mine Board, resulting from administrative proceedings, considers proper.

(b) On a finding that a claim was brought in bad faith or for the purposes of harassment, the Surface Mine Board or the court, whichever is appropriate, may award to the defendant or respondent, however designated, a sum equal to the aggregate amount of all costs and expenses, including attorney fees, as determined to have been reasonably incurred.

(c) The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary to implement the provisions of this section.

§22-3-34. Office of explosives and blasting terminated; transfer of functions; responsibilities, personnel and assets.

The office of explosives and blasting within the Department of Environmental Protection is hereby terminated, and its authority and functions are transferred to the Division of Mining and Reclamation.  With this transfer, all records, assets, and contracts, along with the rights and obligations thereunder, obtained or signed on behalf of the office of explosives and blasting are hereby transferred and assigned to the Division of Mining and Reclamation.  The secretary shall transfer from the office of explosives and blasting to the Division of Mining and Reclamation any personnel and assets presently used in the performance of the duties and functions required by sections thirty-four through thirty-seven of this article.

§22-3-35. Legislative rules on surface-mining blasting; disciplinary procedures for certified blasters.

(a) All authority to promulgate rules pursuant to article three, chapter twenty-nine-a of this code is hereby transferred from the office of explosives and blasting to the Division of Mining and Reclamation as of the effective date of enactment of this section and article during the 2016 session of the Legislature: Provided, That any rule promulgated by the office of explosives and blasting shall remain in force and effect as though promulgated by the Division of Mining and Reclamation until the secretary amends the rules in accordance with the provisions of article three, chapter twenty-nine-a of this code.  Any rules promulgated by the secretary shall include, but not be limited to, the following:

(1) A procedure for the review, modification and approval, prior to the issuance of any permit, of any blasting plan required to be submitted with any application for a permit to be issued by the secretary pursuant to article three of this chapter, which sets forth procedures for the inspection and monitoring of blasting operations for compliance with blasting laws and rules, and for the review and modification of the blasting plan of any operator against whom an enforcement action is taken by the Department of Environmental Protection;

(2) Specific minimum requirements for preblast surveys, as set forth in section thirteen-a, article three of this chapter;

(3) A procedure for review of preblast surveys required to be submitted under section thirteen-a, article three of this chapter;

(4) A procedure for the use of seismographs for production blasting which shall be made part of the blasting log;

(5) A procedure to warn of impending blasting to the owners or occupants adjoining the blasting area;

(6) A procedure to limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts based upon the physical conditions of the site so as to: (A) Prevent injury to persons; (B) prevent damage to public and private property outside the permit area; (C) prevent adverse impacts on any underground mine; (D) prevent change in the course, channel or availability of ground or surface water outside the permit area; and (E) reduce dust outside the permit area;

(7) Provisions for requiring mining operators to publish the planned blasting schedule in a newspaper of general circulation in the locality of the mining operation;

(8) Provisions for requiring mining operators to provide adequate advance written notice of the proposed blasting schedule to local governments, owners and occupants living within the distances prescribed in subsection (a), section thirteen-a, article three of this chapter;

(9) Provisions for establishing a process for the education, training, examination and certification of blasters working on surface-mining operations;

(10) Provisions for establishing disciplinary procedures for all certified blasters responsible for blasting on surface-mining operations conducted within this state in violation of any law or rule promulgated by the Department of Environmental Protection to regulate blasting; and

(11) Provisions for establishing a fee on each quantity of explosive material used for any purpose on surface mining operations, which fee shall be calculated to generate sufficient money to provide for the operation of the explosives and blasting program and the Division of Energy.  The secretary shall deposit all moneys received from these fees into a special revenue fund in the State Treasury known as the Mountaintop Removal Fund to be expended by the secretary and the Division of Energy in the performance of their duties.

§22-3-36. Claims process for blasting.

(a) The Division of Mining and Reclamation shall establish and manage a process for the filing, administration and resolution of claims related to blasting.

(b) Claims which may be filed and determined under the provisions of this section shall be those arising from both of the following:

(1) Damage to property arising from blasting activities conducted pursuant to a permit granted under article three of this chapter; and

(2) The damage is incurred by a claimant who is the owner or occupant of the property.

(c) The claims process established by the Division of Mining and Reclamation shall include the following:

(1) An initial determination by the Division of Mining and Reclamation of the merit of the claim; and

(2) An arbitration process whereby the claim can be determined and resolved by an arbitrator in a manner which is inexpensive, prompt and fair to all parties.

 (d) If the operator disagrees with the initial determination made by the Division of Mining and Reclamation and requests arbitration, then the following shall apply:

(1) Any party may be represented by a representative of their choice;

(2) At the request of the claimant, the Division of Mining and Reclamation shall provide the claimant with representation in the arbitration process, which representation shall not necessarily be an attorney-at-law; and

(3) If the claim is upheld, in whole or in part, then the operator shall pay the costs of the proceeding, as well as reasonable representation fees and costs of the claimant, in an amount not to exceed $1,000.

(e) Participation in the claims process created by this section shall be voluntary for the claimant. However, once the claimant has submitted a claim for determination under the provisions of this section, it is intended that the finding of the Division of Mining and Reclamation, if not taken to arbitration, shall be final. If arbitration is requested, it is intended that the results of such arbitration shall be final. The Division of Mining and Reclamation shall provide written notification to the claimant of the provisions of this subsection and shall secure a written acknowledgment from the claimant prior to processing a claim pursuant to the provisions of this section.

(f) The operator shall pay any claim for which the operator is adjudged liable within thirty days of a final determination. If the claim is not paid within thirty days, the secretary shall issue a cessation order pursuant to section sixteen, article three of this chapter for all sites operated by the operator.

(g) No permit to mine coal shall be granted unless the permit applicant agrees to be subject to the terms of this section.

(h) To fulfill its responsibilities pursuant to this section, the Division of Mining and Reclamation may retain the services of inspectors, experts and other persons or firms as may be necessary.

§22-3-37. Rules, orders and permits to remain in effect regarding blasting; proceedings not affected.

(a) All orders, determinations, rules, permits, grants, contracts, certificates, licenses, waivers, bonds, authorizations and privileges which have been issued, made, granted or allowed to become effective prior to the enactment of this article shall remain in effect according to their terms until modified, terminated, superseded, set aside or revoked pursuant to this article, by a court of competent jurisdiction, or by operation of law.

(b) Any proceedings, including notices of proposed rule-making, or any application for any license, permit or certificate pending before the division are not affected by this enactment.

§22-3-38. Transfer of personnel and assets.

The secretary shall transfer to the Division of Mining and Reclamation any personnel and assets presently used to perform or used in the performance of the duties and functions required by sections thirty-four through thirty-nine of this article.

§22-3A-1

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-2

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-3

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-4

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-5

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-6

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-7

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-8

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-9

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-10

Repealed.

Acts, 2016 Reg. Sess., Ch. 106

§22-3A-11.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§22-4-1. Short title.

This article shall be known and may be cited as the Quarry Reclamation Act.

§22-4-2. Legislative findings.

The Legislature finds that:

The extraction of noncoal minerals by quarrying is a basic, essential and vital industry making an important contribution to the economic well-being of West Virginia. From the small family-owned chert pit to the multinational limestone quarry, quarry aggregate production plays a vital role in West Virginia's economy and the quality of life for its residents; it is in the public interest to insure the availability and orderly development of mineral resources; aggregate minerals are necessary components in many construction activities, without fine and coarse aggregates, it would be impossible to build or maintain the state roadways and airports, with every type of significant construction activity being dependant on the availability and reasonable costs of aggregate minerals and aggregate mineral products; it is not practical to extract minerals required by our society without disturbing the surface of the earth and producing waste materials, and the very character of quarry operations precludes complete restoration of the land to its original condition.

This article also provides requirements intended to protect wildlife and prevent the pollution to the environment surrounding quarries, including rivers, streams, groundwater, aquifers and lakes, to prevent and eliminate hazards to health and safety, to protect all property owners' property rights, and to provide for reclamation of quarried areas so as to assure the continued use and enjoyment of these lands after quarrying is completed;

Further, certain areas in the state are inappropriate for quarry mining while in most locations of West Virginia, quarrying can be conducted in a fashion to prevent these undesirable conditions, while allowing for mining of valuable minerals.

Therefore, the Legislature finds that the quarrying of minerals and reclamation of quarry lands as provided by this article will allow the use of valuable minerals and will provide for the protection of the state's environment and for the subsequent beneficial use of the quarry and reclaimed land.

§22-4-3. Definitions.

Unless the context in which it is used clearly requires a different meaning, as used in this article:

(1) "Abandoned quarry" or "abandoned quarry lands" means:

(A) A quarry which was operated and abandoned without proper reclamation prior to the effective date of this article; or

(B) A permitted quarry where no mineral has been produced or overburden removed for a period of at least six months and the permittee has vacated the site covered by the permit without having complied with all of the requirements of the permit.

Abandoned quarry lands does not mean a quarry which has been granted inactive status by the director and does not mean a quarry which has ceased operations and is in the process of stabilization and reclamation.

(2) "Backfill" means overburden, dirt, rock or other materials that are used as fill material to reduce steepness of slopes or to fill holes, depressions or excavations.

(3) "Berm" means a type of fill or pile used for a specific purpose other than excess spoil disposal; such purposes may include, but not necessarily be limited to drainage control, screening for noise control, screening for aesthetic value, or safety barriers; provided, however, that a berm of ten vertical feet or more at any point shall be designed and the construction certified by an approved person and provided further that any berm consisting of greater than twenty percent fines or nondurable rock must be protected from wind and water erosion.

(4) "Borrow pit" means an area from which soil or other materials are removed to be used, without further processing, as fill for activities such as landscaping, building construction or highway maintenance and construction.

(5) "Critical gradient" means the maximum stable inclination of an unsupported slope as measured from a horizontal plane.

(6) "Director" means the director of the Division of Environmental Protection and his or her authorized agents.

(7) "Disturbed area" means the land area from which the mineral is removed by quarrying and all other land area in which the natural land surface has been disturbed as a result of or incidental to quarrying activities of the operator, including private ways and private roads appurtenant to the area, land excavations, workings, refuse piles, product stockpiles, areas grubbed of vegetation, overburden, piles and tailings. The term does not include manufacturing sites or reclaimed quarry areas.

(8) "Division" means the Division of Environmental Protection.

(9) "Fill" means a side of hill fill or valley fill.

(10) "Inactive operation" means either:

(A) A permitted site where active work has ceased temporarily due to weather conditions, market conditions or other reasonable cause; or

(B) A permitted site where active quarrying has not yet begun.

(11) "Manufacturing" means the process of converting raw materials to salable products but does not include crushing or screening of minerals undertaken in close proximity to active quarrying operations.

(12) "Manufacturing site" means an area of land on which manufacturing occurs and associated areas.

(13) "Minerals" means natural deposits of commercial value found on or in the earth, whether consolidated or loose, including clay, flagstone, gravel, sand, limestone, sandstone, shale, chert, flint, dolomite, manganese, slate, iron ore and any other metal or metallurgical ore. The term does not include coal or topsoil.

(14)"Mulch" means any natural or plant residue, organic or inorganic material, applied to the surface of the earth to retain moisture and curtail or limit soil erosion.

(15) "Operator" means a person who engages in any activities regulated by this article and any rules promulgated hereunder, who as a result is required to hold a permit pursuant to the provisions herein.

(16)"Permit area" means the area of land indicated on the approved map submitted by the permittee and designated in the permit including the location of end strip markers, permit markers and monuments.

(17) "Permittee" means any person who holds a valid permit issued by the division to conduct quarrying activities pursuant to this article.

(18) "Person" means any individual, partnership, firm, society, association, trust, corporation, other business entity or any agency, unit or instrumentality of federal, state or local government.

(19) "Protected structure" means any of the following structures that are situated outside the permit area: An occupied dwelling, a temporarily unoccupied dwelling which has been occupied within the past ninety days, a public building, a structure for commercial purposes, a school, a church, a community or institutional building, a public park, spring box or, water well.

(20) "Quarrying" means any breaking of the ground surface in order to facilitate the extraction of minerals. Quarrying also includes any activity constituting all or part of a process for mineral extraction or removal from their original location as well as adjacent areas ancillary to the operation, including preparation and processing activities, storage areas and haulage ways, roads and trails. The term "quarrying" does not apply to manufacturing operations, including those operations adjacent to the permitted area where manufacturing is conducted.

(21) "Reclamation" means returning disturbed areas to a stable condition which does not create health or safety hazards or adverse environmental impact, and when appropriate or required by permit, returning disturbed quarry areas to a designated postmining land use.

(22)"Side of hill fill" means overburden, dirt or rock that is placed on a natural slope of more than twenty degrees.

(23)"Spoil pile" means overburden and waste material displaced by excavating equipment or other methods and placed on natural ground with an original slope of zero degrees to twenty degrees.

(24)"Surface of regraded bench" means the top portion or part of any regraded area.

(25)"Unreclaimed" means land which has not been stabilized, or if a permit has been issued pursuant to this enactment, land that has not been rehabilitated to a useful purpose in accordance with the quarrying and reclamation plan approved by the division.

(26)"Valley fill" means a fill structure consisting of material placed in a valley where the natural side slopes measured at the steepest point are greater than twenty degrees or the average slopes measured at the steepest point are greater than twenty degrees or the average slopes or the profile of the hollow are greater than twenty degrees.

§22-4-4. Director of the Division of Environmental Protection; powers and duties.

The Director of the Division of Environmental Protection is vested with jurisdiction over all aspects of quarrying and with jurisdiction and control over land, water and soil aspects pertaining to quarry operations, and the restoration and reclamation of quarries and areas affected thereby. This article does not address coal mining activities unless covered by subdivision (2), subsection (u), section three, article three of this chapter.

In addition to any other powers or duties heretofore or hereinafter granted, the director has the following powers and duties:

(a) To control and exercise regulatory authority over all quarry operations in this state and enforce the provisions of this article;

(b) To employ all necessary personnel to carry out the purposes and requirements of this article;

(c) To propose any necessary legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code to implement the provisions of this article; and

(d) To make investigations and inspections necessary to ensure compliance with the provisions of this article.

(e) Nothing in this article may be construed as vesting in the director the jurisdiction to adjudicate property-rights disputes.

§22-4-5. Quarry permit requirements.

(a) It is unlawful for any person to engage in quarrying without having first obtained from the division a permit as required by this article. The application shall fully state the information required by the director. Each new quarry permit shall be issued for a term of five years and is renewable for subsequent terms of five years. The director may grant an administrative extension of an existing permit for a period not to exceed one year. The application may be in writing and on a form prepared and furnished by the division, or the application may be submitted electronically. Applicants shall verify electronic submissions by signed affidavit.

(b) The application shall include the following information:

(1) The names and addresses of the applicant and every officer, partner, director, owner of the applicant;

(2) The names and mailing addresses of any person owning of record or beneficially ten percent or more of any class of stock of the applicant;

(3) The name of any person listed in subdivision (1) or (2) of this subsection who has ever had a quarry permit revoked or had a quarry bond forfeited;

(4) The names and addresses of the owners of the surface of the land to be quarried;

(5) The names and addresses of the owners of the mineral to be quarried;

(6) The source of the applicant's legal right to conduct quarrying on the land to be covered by the permit;

(7) A prequarry water assessment to establish the base level quality and quantity as provided in section fourteen of this article;

(8) The number of acres to be included in the permit area;

(9) A list of other quarrying permits previously or currently held by the applicant, by location and permit number, and any other type of mining permits being applied for or currently held by the applicant;

(10) The common name and geologic title, where applicable, of the mineral or minerals to be extracted;

(11) Provide proof of adequate insurance as required by this article;

(12) A quarrying and reclamation plan as is required by section seventeen of this article;

(13) Any other information required by the director reasonably necessary to effectuate the purposes of this article.

(c) The application for a permit shall be accompanied by copies of an enlarged United States geological survey topographic map meeting the requirements of the subdivisions below. Aerial photographs of the area are acceptable if the plan for reclamation can be shown to the satisfaction of the director. Attendant documentation must include:

(1) A map prepared and certified by or under the supervision of a registered professional civil engineer, or a registered professional mining engineer, or a licensed land surveyor, who shall submit to the director a certificate of registration as a qualified engineer or land surveyor, and be in a scale approved by the director;

(2) Identify the area to correspond with application;

(3) Show probable limits of adjacent underground mining operations, probable limits of adjacent inactive or mined-out areas and the boundaries of surface properties and names of surface and mineral owners of the surface area within five hundred feet of any part of the proposed disturbed area;

(4) Show the base of the crop line, including appropriate geologic cross sections, regrading cross sections and attendant narratives;

(5) Show the names and locations of streams, creeks, tributaries or bodies of public water, roads, buildings, cemeteries, active, abandoned or plugged oil and gas wells, and utility lines on the area of land to be disturbed and within five hundred feet of such area;

(6) Show by appropriate markings the boundaries of the area of land to be disturbed and the total number of acres involved in the area of land to be disturbed;

(7) The date on which the map was prepared, the north point, and the longitude and latitude of the operation;

(8) Show the drainage plan on and away from the area of land to be disturbed. Such plan shall indicate the directional flow of water, constructed drainage systems, natural waterways used for drainage, and the streams or tributaries receiving or to receive this discharge. Upon receipt of such drainage plan, the director may furnish the office of water resources of the division a copy of all information required by this subdivision, as well as the names and locations of streams, creeks, tributaries or bodies of public water within five hundred feet of the area to be disturbed;

(9) Show the presence of known acid-producing materials which when present in the overburden, may cause spoil with a pH factor below 5.5, preventing effective revegetation. The presence of such materials, wherever occurring in significant quantity, shall be indicated on the map, filed with the application for permit. The operator shall also indicate the manner in which acid-bearing spoil will be suitably prepared for revegetation and stabilization, whether by application of mulch or suitable soil material to the surface or by some other type of treatment, subject to approval of the director.

(10) The operator shall also indicate the manner in which all permanent disposal sites will be stabilized.

(11) The certification of the maps shall read as follows: "I, the undersigned, hereby certify that this map is correct, and shows to the best of my knowledge and belief all the information required by the quarrying laws of this state." The certification shall be signed and notarized. The director may reject any map as incomplete if its accuracy is not so attested.

(d) Each applicant shall secure a performance bond or other appropriate financial assurance and insurance as required by this article.

(e) A permit may cover more than one tract of land, if the tracts are adjacent or part of the same quarrying complex, and described in the application.

(f) If a permittee has more than one permit at any quarrying site at an adjacent, or the same quarrying complex, and if the director deems appropriate, permits may be consolidated into one permit at the request of the permittee.

(g) A permit remains valid until quarrying is completed and the final inspection and report are approved or until the permit is revoked by the director.

(h) All underground quarry operations which disturb more than five acres of surface must obtain a quarry permit, including underground quarry operations located on more than one tract of land, if the tracts are adjacent or part of the same mining complex and the total disturbed area exceeds more than five acres. Those underground operations which disturb less than five acres of surface must:

(1) File a notice of intent to operate with the director at least sixty days prior to disturbance. The notice of intent to operate shall be made in writing on forms prescribed by the director and shall be signed and verified by the operator. This notice shall include the information required by subdivisions (1) through (11) and subdivision (13), subsection (b) of this section;

(2) The applicant shall publish a notice of intent to operate as a Class III legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code. The notice shall contain, in abbreviated form, the following:

(A) The name and address of the operator;

(B) The name and addresses of the surface and mineral owners;

(C) That written comments on the application will be accepted until a specified date, within thirty days after the first date of publication of the notice;

(D) A description of the general area where the quarry will be located;

(E) The address of the office of the division to submit written comments.

(3) The director shall issue a decision to approve or deny the notice of intent to operate, within thirty days of close of the public comment period, unless the period is extended by the director to receive additional application information. The director may deny or limit permission to operate upon the finding that the underground quarry will cause serious adverse environmental impacts pursuant to section seven or eight of this article.

(4) A minimum of a $10,000 performance bond is required for each underground mining intent to operate. This performance bond shall be released if the permittee has complied with all permit requirements and has begun underground mining. Underground mining must begin within two years of receipt of a notice of intent to operate.

§22-4-6. Application review, public notice and comment, and permit approval.

(a) The director shall, upon receipt of an application for a permit, determine if the application is complete and contains the information required in the application. The director has thirty days to review the application for technical completeness. An application is complete when all required information has been submitted to the director. If the application is determined incomplete, the applicant shall be notified with written comments stating the deficiencies. If the director finds the application has technical deficiencies or other inadequacies which require further information, the thirty-day review period shall be interrupted on the date the notice is mailed to the applicant, and the time period shall resume upon receipt of the corrected and complete application. Should the applicant disagree with a decision of the director, the applicant may, by written notice, request a hearing before the director. The director shall hold the hearing within thirty calendar days of receipt of this notice. When a hearing has been held, the director shall notify the applicant of the decision by certified mail within twenty days of the hearing. An applicant aggrieved by a final order of the director may, after the hearing or without a hearing, appeal the order to the surface mine board. Any appeal to the board shall be taken without prejudice by the director in the final review of a permit application.

(b) Upon the director's determination that an application is complete, the applicant shall publish a notice of the application for a permit as a Class III legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code. The notice shall contain, in abbreviated form, the information required in the application. The notice shall state that written comments on the application will be accepted until a specified date, within thirty days after the first date of publication of the notice. The notice shall also state that a copy of the complete application including the quarrying and reclamation plans and maps will be available for public inspection during the public comment period at the office of the county clerk in the county or counties in which the proposed permit area is located. The publication area of the notice required by this section is the county or counties in which any portion of the proposed permit area is located. The cost of all publications required by this section shall be the responsibility of the applicant.

(c) Prior to approval of any quarry mining permit, the division shall upon receipt of a written request of a person having expressed concern or objections to the proposed permit, cause a public hearing to be held in the locality where the quarry operation is proposed to be located for the purpose of receiving comment regarding the expected or perceived impacts of the quarry operation on the local area: Provided, That no public hearing is required for a notice of intent to operate an underground quarry with a surface disturbance less than five acres.

(d) The director shall receive and fully consider evidence or comments submitted during the public comment period by any member of the public.

(e) Within thirty days of close of the public comment period, upon the determination by the director that proper public notice has been given and comment has been received by the agency, and that the quarrying operation will be conducted consistent with the requirements of this article, then the director shall issue a quarry permit to the applicant.

(f) The director, upon receipt of comments expressing substantial new questions regarding the application, may reopen the public comment period.

§22-4-7. Denial of quarry permit.

(a) The director may deny a permit application, modification or transfer for one or more of the following reasons:

(1) Any requirement of federal or state environmental law, rule or regulation would be violated by the proposed permit.

(2) The proposed quarry operation will be located in an area in the state which the director finds ineligible for a permit pursuant to section eight.

(3) The applicant or any person required to be listed on the application pursuant to section five of this article has not corrected all violations of any prior permit issued pursuant to this article which resulted in:

(A) Revocation of a permit;

(B) Cessation of the operation by order of the director;

(C) Forfeiture of all or part of the permit bond or other surety; or

(D) A court order issued against the applicant related to mining or quarrying;

(E) The applicant or any person required to be listed on the application pursuant to section five of this article has not paid all fines or fees assessed by the agency or by court judgment imposed pursuant to the provisions of this article.

(b) An applicant whose application for a permit, modification or transfer was denied may petition the director for review of the denial decision. The director, in his or her discretion, may approve an application which was previously denied because of a past permit revocation or forfeiture if the person whose permit was revoked or bond forfeited pays into the abandoned quarry reclamation fund an amount determined by the director as adequate to reclaim the area disturbed under the prior permit or completes reclamation of site upon which the permit or bond was revoked or forfeited, and demonstrates to the director's satisfaction that he or she will comply with this article and rules promulgated thereunder.

(c) The director may approve a portion of a permit area upon a finding that approval of the entire permit area would otherwise be denied pursuant to the provisions of this section.

§22-4-8. Limitations; mandamus.

The Legislature finds that there are certain areas in the State of West Virginia which are impossible to reclaim either by natural growth or by technological activity and that if quarrying is conducted in these certain areas such operations may naturally cause stream pollution, landslides, the accumulation of stagnant water, flooding, the destruction of land for agricultural purposes, the destruction of aesthetic values, the destruction of recreational areas and future use of the area and surrounding areas, thereby destroying or impairing the health and property rights of others, and in general creating hazards dangerous to life and property so as to constitute an imminent and inordinate peril to the welfare of the state, and that such areas shall not be mined by the surface-mining process.

Therefore, authority is hereby vested in the director to delete certain areas from all quarrying operations.

No application for a permit shall be approved by the director if there is found on the basis of the information set forth in the application or from information available to the director and made available to the applicant that the requirements of this article or rules hereafter adopted will not be observed or that there is not probable cause to believe that the proposed method of operation, backfilling, grading or reclamation of the affected area can be carried out consistent with the purpose of this article.

If the director finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the State of West Virginia with a similar type of operation upon land with similar overburden shows that one or more of the following conditions cannot feasibly be prevented: (1) Substantial deposition of sediment in stream beds; (2) landslides; or (3) acid-water pollution, the director may delete such part of the land described in the application upon which such overburden exists.

If the director finds that the operation will constitute a hazard to a dwelling house, public building, school, church, cemetery, commercial or institutional building, public road, stream, lake or other public property, then he or she shall delete such areas from the permit application before it can be approved.

The director shall not give approval to quarry within one hundred feet of any public road, stream, lake, or state, national or interstate park or other public property, and shall not approve the application for a permit where the quarry operation will cause adverse affects to these locations unless adequate screening and other measures approved by the director are to be utilized and the permit application so provides: Provided, That the one-hundred-foot restriction does not include berms, drainage control structures and ways used for ingress and egress to and from the minerals as herein defined and the transportation of the removed minerals, nor does it apply to the dredging and removal of minerals from the streams or watercourses of this state. The one hundred foot limitation may be waived only when the director, upon consideration of local land uses, finds that the land use of and near the permitted area will be significantly enhanced by an alteration of the topography within the one hundred foot barrier. Mineral removal shall be prohibited within twenty-five feet of all property lines: Provided, however, That the twenty-five foot setback area may, where appropriate, be used for tree planting, berms, visual barriers, vegetation, drainage structures, access rights-of-way or any other purposes approved by the director: Provided further, That existing berms, barriers, stockpiles, roads and other structures in existence within the twenty-five foot setback prior to the effective date of this section may remain in place. The permittee must provide adequate revegetation within the setback, as is appropriate for the intended use.

Whenever the director finds that ongoing quarry operations are causing or are likely to cause any of the conditions set forth in the first paragraph of this section, he or she may order immediate cessation of such operations and he or she shall take such other action or make such changes in the permit as he or she may deem necessary to avoid said described conditions.

The failure of the director to discharge the mandatory duty imposed by this section is subject to a writ of mandamus, in any court of competent jurisdiction by any private citizen affected thereby.

§22-4-9. Permit renewals and revisions.

(a) Any valid permit issued pursuant to this article carries with it the right of successive renewal upon expiration with respect to areas within the boundaries of the existing permit. All permittees shall publish a Class I legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code.

(b) If an application for renewal of a valid permit includes a proposal to extend the quarry mining operation beyond the boundaries authorized in the existing permit, that portion of the application for renewal which addresses any new land area is subject to the requirements for permit modifications as provided in section ten of this article. Application for permit renewal shall be made at least one hundred twenty days prior to the expiration of the valid permit.

§22-4-10. Modification of permits.

(a) Prior to expanding or otherwise altering quarrying operations beyond the activities authorized under an existing quarry permit, a permittee shall obtain approval for modification from the director. The application shall be in writing on forms provided by the division, or the application may be submitted electronically. Applicants shall verify electronic submissions by signed affidavit. Information that remains unchanged from the initial application is not required to be resubmitted. A permit may be modified in any manner, so long as the director determines that the modification fully meets the requirements of all applicable federal and state law, regulations and rules, and that the modifications would be consistent with the issuance of the original permit.

(b) No modification of a permit which has been approved by the director becomes effective until any required changes have been made in the performance bond or other security posted under the provisions of sections twenty or twenty-two of this article to assure the performance of obligations assumed by the permittee under the permit and the quarrying and reclamation plan.

(c) A minor permit modification is one in which the proposed modification would not cause a significant departure from the terms and conditions of the existing permit and would not result in a significant impact to the environment or to nearby property.

(d) An application for a minor permit modification shall require information related to the modification, any impact it may have on the original permit area and adjacent property, quarrying and reclamation plans, and any other information deemed necessary by the director. An application for a minor permit modification requires public notice, but does not require a public hearing.

(e) Any application for a permit modification that is not a minor permit modification is a major permit modification. An application for a major permit modification must meet the same requirements as for a new permit application. Modification of a buffer zone of a quarry operation is always a major modification.

(f) The director shall act upon the application for a permit modification pursuant to the provisions of subsection (a) of section six of this article.

(g) The director may deny the application for a permit modification for the reasons and under the stated procedure as for new permits set forth in sections seven and eight of this article.

§22-4-11. Transfer of permits.

(a) When the interest of a permittee of any quarry operation is sold, leased, assigned, or otherwise disposed of, the director may transfer the permit and shall release the transferor from his or her liabilities imposed by this article or rules issued under this article if both the transferor and transferee have complied with the requirements of this article and the transferee in interest assumes the duties and responsibilities of the permit. The transferee shall provide applicable information as required by this article and shall meet public notice and comments requirements as required for major permit modifications.

(b) The proposed transferee shall pay a $500 fee with the filing of an application for transfer of permit.

(c) The director shall act upon the permit transfer as expeditiously as possible but not later than thirty days after the application forms and any supplemental information required are filed with the director.

(d) The director may deny the permit transfer for any reasons and under the same procedure set forth in sections seven and eight of this article. If the applicant proposes any change to the permit conditions, the director shall review the application and treat it as a modification as provided in this article.

(e) The director, for good cause shown, may allow transfer of a revoked permit if the transferee complies with the requirements of this article and assumes the duties and responsibilities of the permit.

(f) If the director denies an application to transfer a permit, the director shall give the permittee and the proposed transferee written notice of:

(1) The director's determination;

(2) Any changes in the application which would make it acceptable; and

(3) The right of the permittee and the proposed transferee to a hearing before either or both the director or the surface mine board.

(g)(1) If a hearing before the director is not requested within fifteen days after receipt of the director's notice of the denial, the denial is the director's final order on the matter appealable to the surface mine board.

(2) If a hearing before the director is requested within fifteen days after receipt of the director's notice, the date for the hearing may not be less than fifteen days nor more than thirty days after the date of the request unless the parties mutually agree on another date.

(3) The director shall enter a final order granting or denying the transfer application within thirty days after the hearing.

§22-4-12. Preblast survey requirements.

(a) For all new permits issued after the effective date of this section, at least thirty days prior to commencing blasting, an operator or an operator's designee shall make the following notifications in writing to all owners and occupants of protected structures that the operator or operator's designee will perform preblast surveys in accordance with subsection (f) of this section. The required notifications shall be to all owners and occupants of protected structures within one thousand five hundred feet of the blasting area.

(b) For quarries in operation as of the effective date of this section, the quarry operator within one year, shall conduct a preblast survey of the first protected structure within one thousand feet of the blasting area. Any property owner may, at their own expense, pay for a preblast survey meeting the provisions of this article, for his or her protected structure to assess the impact of future blasts to those dwellings or structures by an existing quarry.

(c) An occupant or owner of a man-made dwelling or structure within the areas described in subsection (a) of this section, may waive the right to a preblast survey in writing. If a dwelling is occupied by a person other than the owner, both the owner and the occupant must waive the right to a preblast survey in writing. If an occupant or owner of a man-made dwelling or structure refuses to allow the operator or the operator's designee access to the protected structure and refuses to waive in writing the right to a preblast survey or to the extent that access to any portion of the structure, underground water supply or well is impossible or impractical under the circumstances, the preblast survey shall indicate that access was refused, impossible or impractical. The operator or the operator's designee shall execute a sworn affidavit explaining the reasons and circumstances surrounding the refusals.

(d) If a preblast survey was waived by the owner and was within the requisite area and the property is sold, the new owner may request a preblast survey from the operator.

(e) An owner within the requisite area may request, from the operator, a preblast survey on structures constructed after the original preblast survey.

(f) The preblast survey shall include:

(1) The names, addresses or description of structure location and telephone numbers of the owner and the residents of the structure being surveyed and the structure number from the permit blasting map;

(2) The current home insurer of the owner and the residents of the structure;

(3) The names, addresses and telephone numbers of the operator and the permit number;

(4) The current general liability insurer of the operator;

(5) The name, address and telephone number of the person or firm performing the preblast survey;

(6) The current general liability insurer of the person or firm performing the preblast survey;

(7) The date of the preblast survey and the date it was mailed or delivered to the director;

(8) A general description of the structure and its appurtenances including, but not limited to: (A) The number of stories; (B) the construction materials for the frame and the exterior and interior finish; (C) the type of construction including any unusual or substandard construction; and (D) the approximate age of the structure;

(9) A general description of the survey methods and the direction of progression of the survey, including a key to abbreviations used;

(10) Written documentation and drawings, videos or photographs of the preblast defects and other physical conditions of all structures, appurtenances and water sources which could be affected by blasting;

(11) Written documentation and drawings, videos or photographs of the exterior and interior of the structure to indicate preblast defects and condition;

(12) Written documentation and drawings, videos or photographs of the exterior and interior of any appurtenance of the structure to indicate preblast defects and condition;

(13) Sufficient exterior and interior photographs or videos, using a variety of angles, of the structure and its appurtenances to indicate preblast defects and the condition of the structure and appurtenances;

(14) Written documentation and drawings, videos or photographs of any unusual or substandard construction technique and materials used on the structure and/or its appurtenances;

(15) Written documentation relating to the type of water supply, including a description of the type of system and treatment being used, an analysis of untreated water supplies, a water analysis of water supplies other than public utilities, and information relating to the quantity and quality of water;

(16) When the water supply is a well, written documentation, where available, relating to the type of well; the well log; the depth, age and type of casing or lining; the static water level; flow data; the pump capacity; the drilling contractor; and the source or sources of the documentation;

(17) A description of any portion of the structure and appurtenances not documented or photographed and the reasons;

(18) The signature of the person performing the survey; and

(19) Any other information required by the director which additional information shall be established by rule in accordance with article three, chapter twenty-nine-a of this code.

(g) The director may require a preblast survey as a condition of a major permit modification, upon a finding that the proposed blasting area will occur within one thousand five hundred feet from a protected structure, and will be of a nature and intensity to potentially cause blasting damage.

§22-4-13. Blasting restrictions; blasting formula; filing preplan; site specific blasting requirements; penalties; notice.

(a) Where blasting of overburden or mineral is necessary, the blasting shall be done in accordance with established principles for preventing injury to persons and damage to residences, buildings and communities, and comply with the following:

(1) The weight in pounds of explosives to be detonated in any period less than an eight millisecond period without seismic monitoring shall conform to the following scaled distance formula: W = (D/50)(to the second power). Where W equals weight in pounds of explosives detonated at any one instant time, then D equals distance in feet from nearest point of blast to nearest residence, building or structure, other than operation facilities of the mine: Provided, That the scaled distance formulas need not be used if a seismograph measurement is located at the nearest protected structure is recorded and maintained for every blast. If access to the structure is refused by the owner of the protected structure, the measurement may be taken as close as practicable between the blast site and the protected structure. The peak particle velocity in inches per second in any one of the three mutually perpendicular directions shall not exceed the following values at any protected structure:

Seismograph Measurement Distance to the Nearest Protected Structure

1.25 0 - 300 feet

1.00 301 - 5,000 feet

0.75 5,001 feet or greater

The maximum ground vibration standards do not apply to the structures owned by the permittee and not leased to another person and structures owned by the permittee and leased to another person, if a written waiver by the lessee is submitted to the director before blasting.

(2) Airblast shall not exceed the maximum limits listed below at the location of any dwelling, public buildings, school or community or institutional building outside the permit area:

Lower frequency limit of measuring

system in Hz(+3dB) Maximum level in db

1Hz or lower-flat response* 134 peak

2Hz or lower-flat response 133 peak

6Hz or lower-flat response 129 peak

c-weighted-slow response* 105 peak dBC

* only when approved by the director.

(3) Access to the blast area shall be controlled against the entrance of unauthorized personnel during blasting for a period thereafter until an authorized person has reasonably determined that:

(A) No unusual circumstances exist such as imminent slides or undetonated charges, etc.; and

(B) Access to and travel in or through the area can be safely resumed.

(4) A plan of each operation's methods for compliance with this section (blast delay design) for typical blasts which shall be adhered to in all blasting at each operation, shall be submitted to the Division of Environmental Protection with the application for a permit. It shall be accepted if it meets the scaled distance formula established in subdivision (1) of this section.

(5) Records of each blast shall be kept in a log to be maintained for at least three years, which will show for each blast the following information:

(A) Date and time of blast;

(B) Number of holes;

(C) Typical explosive weight per delay period;

(D) Total explosives in blast at any one time;

(E) Number of delays used;

(F) Weather conditions;

(G) Signature of operator employee in charge of the blast;

(H) Seismograph data; and

(I) Date of seismograph calibration.

(b) Blasting within one thousand feet of a protected structure shall have a site specific blast design which may vary from the requirements of this section as is approved by the director. The site specific blast plan shall limit the type of explosive and detonating equipment, the size, timing and frequency of blasts to: Prevent injury to persons; prevent damage to public and private property outside the permit area; prevent adverse impacts to any underground mine; and to minimize dust outside the permit area: Provided, That for quarries permitted pursuant to section twenty-seven, site specific blasting plan will not be required if not required as part of its existing blasting plan, unless the director determines that based on valid local complaints, the local conditions require a site specific blasting plan.

(c) All assessments as set forth in this section shall be assessed by the director, collected by the director and deposited with the treasurer of the State of West Virginia, to the credit of the quarry reclamation fund.

(d) The director shall propose legislative rules pursuant to article three, chapter twenty-nine-a of this code which shall provide for a warning of impending blasting to the owners, residents or other persons who may be present on property adjacent to the blasting area.

(e) Where inspection by the Division of Environmental Protection establishes that the scaled distance formula or the seismograph results or the approved preplan are not being adhered to, the following penalties shall be imposed:

(1) For the first offense in any one permit year under this section, the permit holder shall be assessed not less than $500 nor more than $1,000;

(2) For the second offense in any one permit year under this section, the permit holder shall be assessed not less than $1,000 nor more than $5,000;

(3) For the third offense in any one permit year under this section or for the failure to pay any assessment herein above set forth within a reasonable time established by the director, the permit shall be revoked.

§22-4-14. Performance standards.

Each permit issued by the director pursuant to this article shall require the quarry operation, at a minimum, to meet the following performance standards:

(a) The operator shall impound, drain or treat all runoff water so as to reduce soil erosion, damage to agricultural lands and prevent unlawful pollution of streams and other waters. The director shall require as a condition of a new permit, groundwater testing prior to and during quarrying. Tests shall be for both quantity and quality of surrounding groundwaters. Groundwater test sites above and below gradient of the proposed quarry shall be established prior to quarrying to establish a six months baseline for area groundwater. Test wells, seeps and springs may be utilized as is appropriate. Monthly testing shall be done prior to the beginning of quarrying, and quarterly monitoring the first year of quarrying. Annual testing is to be done for an additional four years. If no adverse impact to groundwater is discovered, no further monitoring will be required. However, upon subsequent discovery of possible adverse impact, the director may require monthly monitoring and appropriate remedial actions to be done by the permittee.

(b) In the case of storm water accumulations or any breakthrough of water, adequate treatment shall be undertaken by the operator so as to prevent pollution occurring from the release of water. Treatment may include check-dams, settling ponds and chemical or physical treatment. In the case of a breakthrough of water, when it is possible, the water released shall be impounded immediately. All water so impounded shall receive adequate treatment by the operator before it is released into the natural drainway.

(c) Water leaving the permit area is subject to the requirements of article eleven of this chapter.

(d) The permittee shall place a monument as prescribed by the division in an approved location near the operation. If a quarry operation is under a single permit and is not geographically continuous, the permittee shall locate additional monuments and submit additional maps, as required by section five of this article, before mining other permitted areas.

(e) The operator shall remove or properly dispose of all metal, equipment and other refuse resulting from the operation. No permittee may engage in or allow, the throwing, dumping, piling or otherwise placing of any overburden, stones, rocks, coal, mineral, earth, soil, dirt, debris, trees, wood, logs or other materials or substances of any kind or nature beyond or outside the area of land which is under permit for which bond has been posted, unless it is placed on a site which has a permit allowing that activity, nor may any operator place any of the foregoing listed materials in a way that normal erosion or slides brought about by natural physical causes will permit the same to go beyond or outside the area of land which is under permit and for which bond has been posted.

(f) Prior to beginning quarrying operations, the operator shall install, certify, and maintain a drainage system in accordance with the approved drainage control plan. Lateral drainage ditches connecting to natural or man-made waterways shall be constructed to control water runoff, prevent erosion and provide adequate drainage control. The depth and width of natural drainage ditches and any other diversion ditches may vary depending on the length and degree of slope.

(g) When the planting of an area has been completed and full or partial bond release is requested the operator shall file a planting report with the director on a form to be prescribed and furnished by the director providing the following information:

(1) Identification of the operation;

(2) The types and rate of application of planting or seeding, including mixtures and amounts;

(3) Types and rates of fertilizer and any other chemicals used or added to the soil;

(4) The date of planting or seeding;

(5) The area of land planted; and

(6) Other relevant information required by the director.

All planting shall be certified by the permittee, or by the party with whom the permittee contracted for planting.

(h) All fill and cut slopes of the operation and haulage ways shall be seeded and planted in a manner as prescribed by the quarrying and reclamation plan.

(i) After quarrying is completed, the site will be stabilized to prevent erosion. Stabilization may be accomplished by vegetative cover or other means as approved in the quarrying and reclamation plan. Rules proposed pursuant to this article shall contain guidelines for establishing the various types of stabilization.

(j) Planting shall be carried out so that it is completed before the end of the first planting season. Vegetative planting may be completed by the operator or the permittee may contract with the local soil conservation district or a private contractor. A revegetation schedule shall be incorporated into the quarrying and reclamation plan.

(k) The operator may, where appropriate, use visual screening methods such as berms, plantings, or fences which may be placed within the buffer where conditions allow and where the site is readily visible to the general public.

(l) If the permittee or other person desires to conduct underground quarrying upon the premises or use underground quarry surface haulage ways for other lawful purposes, the permittee may designate locations to be used for these purposes where it will not be necessary to backfill if required by the permit, until the underground quarrying or other uses is completed, during which time the bond on file for that portion of that operations may not be released. Locations shall be described on the map required by the provisions of section five of this article.

(m) The operator shall also comply with all other permit conditions and requirements of this article and any rules promulgated thereunder.

§22-4-15. Groundwater protection.

The Groundwater Protection Act provisions contained in subsection (b), section four, article twelve of this chapter do not apply to mineral extraction areas of quarry mining sites regulated under this article. All other areas of the mine, including groundwater beneath the mineral extraction area, and water discharges from the quarry shall meet the requirements of article twelve of this chapter.

§22-4-16. Water rights and replacement; waiver of replacement.

(a) Nothing in this article affects the rights of any person to enforce or protect, under applicable law, that person's interest in water resources affected by removal of mineral resources.

(b) Any permittee shall replace the water supply of an owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution or interruption proximately caused by the mineral removal and associated activities, unless right of replacement is waived by the owner or unless the water supply is furnished by a public service district, municipality, government entity or some other third party.

(c) A public service district, municipality, government entity, or other party may contract with a permittee to obtain water and waive the replacement of water supply if contamination, diminution, or interruption should occur.

(d) If the director determines that: (1) Contamination, diminution or damage to an owner's underground water supply exists; and (2) the contamination, diminution, or damage to the underground water supply could not be due to seasonal variations, or other possible causes, then the permittee shall upon receiving written notification from the director: (A) Provide an emergency drinking water supply within twenty-four hours; (B) provide a temporary water supply within seventy-two hours; (C) provide a permanent water supply within thirty days; and (D) pay all reasonable costs incurred by the owner in securing a water supply: Provided, That the permittee is entitled to recover the cost of replacing an owner's water supply if it is determined that contamination, diminution, or damage to the water supply was not caused by mineral removal activity of the permittee.

§22-4-17. Quarrying and reclamation plan.

(a) The application for a new permit shall include a proposed quarrying and reclamation plan. In developing this complete quarrying and reclamation mining plan all reasonable measures shall be taken to eliminate damages to members of the public, their real and personal property, public roads, streams and all other public property from soil erosion, rolling stones and overburden, water pollution and hazards dangerous to life and property.

(b) The quarrying and reclamation plan is required to be completed by a person approved by the director. It shall include the following information:

(1) The purpose for which the land to be permitted was previously used;

(2) The proposed useful purposes of the land following completion of quarrying;

(3) A general description of the manner in which the land is to be opened for quarrying and how the quarrying activity is to progress across the permitted area and an approximate time frame for reclamation of each area or phase of the quarrying;

(4) The manner in which topsoil is to be conserved and used in reclamation and, if conditions do not permit conservation and restoration of all or part of the topsoil, an explanation of the conditions and proposed alternative procedures;

(5) The description of the proposed final topography for the applicant's proposed land use after reclamation is completed and the proposed method of accomplishment;

(6) The practices to provide public safety for adjacent properties and provisions for fencing, berms or other site improvements reasonably necessary to assure safety at the permitted site after mining and reclamation is completed; and

(7) The manner and type of revegetation or other surface treatment of the disturbed area.

(c) An application for a permit shall indicate the existence of known, threatened or endangered species located within the proposed permit boundary as defined by federal Endangered Species Act of 1973.

(d) The application shall provide the information on slope gradient and fill plans as required in section eighteen of this article.

§22-4-18. Land reclamation requirements.

(a) Quarries shall meet the final design requirements for slopes and gradients:

(1) Final slope gradients of fill areas shall be designed using recognized standards and certified by a professional engineer or other approved professional specialist, except for backfill within the mineral excavation pit area, where no standard applies.

(2) The designed steepness and proposed treatment of the final slopes shall take into consideration the physical properties of the slope material, its probable maximum water content, landscaping requirements and other factors and may range from ninety degrees in a sound limestone or similar hard rock to less than twenty degrees in unconsolidated materials.

(3) The quarrying and reclamation plan shall specify slope angles flatter than the critical gradient for the type of material involved.

(4) The toe of the proposed fill will rest on natural slopes no steeper than twenty degrees unless a detailed geotechnical study of the toe foundation area is completed. The results of this study and subsequent stability evaluations must assure a static safety factor of at least one and one-half. Engineering designs for fills constructed on natural slopes steeper than twenty degrees may require over excavation of the toe area to rock, incorporation of toe buttresses or other engineered configurations to enhance stability. The design and construction of all fills proposed on natural slopes steeper than twenty degrees shall be certified by a registered professional engineer.

(5) Constructed slope fills steeper than two horizontal to one vertical must exhibit a static safety factor of one and one-half.

(6) Fills may be constructed so that the outer slope shall be no steeper than two horizontal to one vertical. A twenty foot wide bench shall be installed at a maximum of every fifty feet in vertical height of the fill with a one percent to five percent slope toward a constructed protected channel or natural drainway: Provided, That constructed fill slopes may be steeper than two horizontal to one vertical if they meet a static safety factor of one point five (1.5) and are certified by a registered professional engineer.

(7) Surface water runoff from the area above fills shall be diverted away from the fill into stabilized diversion channels. Runoff from the fill surface shall be diverted to stabilized channels off the fill.

(8) During and after construction of a fill area, slope protection shall be provided to minimize surface erosion. All disturbed areas of the fill, including diversion channels that are not riprapped or otherwise protected, shall be revegetated upon completion of construction.

(b) Highwalls which are to be left after completion of quarrying shall be backfilled or shot down to provide a final slope in compliance with subsection (d) of this section unless:

(1) It is demonstrated that the highwall is stable;

(2) Adequate material removed in the process of quarrying and not located in a permanent disposal area, is not available; or

(3) These actions are precluded by close proximity to permit boundaries, other physical limitations, or the post quarry land use requires that the highwall remain.

(c) Backfills, fills, cut slopes or highwalls that exist and are part of a permit area prior to the effective date of this article are not required to comply with subdivisions (1) through (8), subsection (a) of this section. Permits issued prior to the effective date of this section which contain the requirements of subdivisions (1) and (2), subsection (a) or subsection (b) of this section are not exempt unless modified by the division.

(d) The final land form shall be graded to provide positive drainage throughout the permit area except areas that are to be inundated in accordance with the quarrying and reclamation plan map.

(e) Backfill may be exported off the permitted areas only for beneficial uses as approved by the director.

(f) Permanent spoil piles will be stabilized, covered with suitable material and revegetated.

(g) Upon an order of the director, the operator shall, within sixty days after service of a copy of the order to the operator by certified United States mail, furnish to the division four copies of a progress map which is prepared consistent with maps prepared for permit applications as provided in section five of this article, which shall show in detail completed reclamation work, as required by the director. The progress map shall be within a reasonable degree of accuracy as is required by the director. When no additional land has been disturbed by operations during the preceding year and the prior map is still up to date, in lieu of a progress map, the operator shall provide a signed statement regarding the status of the operation to the director. A final map shall be submitted within sixty days after completion of mining operations. Failure to submit maps or aerial photographs or notices at specified times shall cause the permit in question to be suspended.

§22-4-19. Time period for reclamation.

(a) The operator shall commence the reclamation of the incremental area of land disturbed by the operator after the completion of all quarrying of that area in accordance with the approved quarrying and reclamation plan. The quarrying and reclamation plan for each operation shall be site specific in describing how the quarrying and reclamation activities are to be coordinated to minimize total land disturbance and to keep reclamation operations as contemporaneous as possible with the advance of the quarry operations. All quarry operations shall be conducted in compliance with the approved quarrying and reclamation plan and the requirements of this article.

(b) At the option of the permittee and with the director's concurrence, a quarry permit may be inactive for a time so specified by the director, during which no mineral or overburden is removed if the following conditions are met:

(1) That economically viable mineral reserves remain in the permitted area;

(2) All disturbed areas are reclaimed or stabilized to prevent erosion and sedimentation;

(3) All drainage and sediment control structures, such as culverts, ditches, sediment basins and traps are maintained; and

(4) All vegetation is maintained and reseeded as necessary.

(c) Any permit which is not in operation and has failed to apply for inactive status within six months is deemed an abandoned quarry.

§22-4-20. Fiscal responsibility.

(a) Each applicant must provide a certificate of insurance issued by an insurance company authorized to do business in this state for all operators at the site including blasting and quarrying operators. Blasting insurance is not required of quarry operations which do not conduct blasting. The coverage shall include not less than $1 million for personal injury per occurrence, and not less than $500,000 for property damage per occurrence. Proof of continuing insurance coverage shall be required on an annual basis. In addition, the insurance company shall promptly notify the director of any lapses, default, nonrenewal, cancellation, or termination of coverage.

(b) Each applicant who makes application for a new permit under section five of this article shall furnish a performance bond after permit approval but before its issuance, on a form to be prescribed and furnished by the director, payable to the State of West Virginia and conditioned that the permittee faithfully performs all of the requirements of this article. The bond or bonds shall cover the entire area disturbed by quarrying plus the estimated number of acres to be disturbed in the upcoming year. As additional areas outside the bonded acreage are needed to facilitate the quarry operation, the permittee shall file an additional bond or bonds to cover the additional acreage with the director. The bond shall be posted and accepted by the director prior to disturbing an area for quarrying.

(c) The amount of the bond shall be at least $1,000 for each acre or fraction of an acre of land to be disturbed. The director shall determine the amount per acre of the bond that is required before a permit is issued. The minimum amount of bond required is $10,000.

(d) In lieu of a performance bond covering the entire permitted area, the director may accept incremental bonding. If incremental bonding is used, as succeeding increments of quarry operations are to be initiated and conducted within the permit area, the permittee shall file with the director an additional bond or bonds to cover the increments in accordance with this section.

 (e) The applicant may elect to execute the performance, surety bonding, collateral bonding, establishment of an escrow account, performance bonding fund participation, self-bonding or a combination of these methods.

(f) If collateral bonding is used, the applicant may elect to deposit cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank, or of the homeowners' loan corporation; full faith and credit general obligation bonds of the State of West Virginia, or other states, and of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the division. The cash deposit or market value of such securities or certificates shall be equal to or greater than the sum of the bond. The director shall, upon receipt of any such deposit of cash, securities or certificates, promptly place the same with the treasurer of the State of West Virginia whose duty it is to receive and hold the same in the name of the state in trust for the purpose for which the deposit is made when the permit is issued. The applicant or permittee making the deposit is entitled from time to time to receive from the state Treasurer, upon the written approval of the director, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with the treasurer in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond. Interest received on financial instruments shall accrue to the applicant or permittee.

(g) The director shall authorize release of incremental portions of a bond or other surety required in this section upon verification of completion of adequate reclamation of a previously mined portion of a quarry covered by the bond or other surety.

(h) The performance bond or deposits from the bond pooling fund shall be forfeited upon failure of the permittee to perform in the manner set forth in the approved quarrying and reclamation plan or to reclaim the land as provided for in the permit or upon revocation of the permit. The director shall notify the permittee by certified mail, return receipt requested, of its intention to initiate forfeiture proceedings. The permittee has thirty days to request a hearing before the director. The director shall render a decision within thirty days of the hearing. Where the operation has deposited cash or securities as collateral in lieu of corporate surety, the director shall declare said collateral forfeited and shall direct the state Treasurer to pay said funds into the "quarry reclamation fund" as created in section twenty-three of this article, to be used by the director to effect proper reclamation and to defray the cost of administering this article. Should any corporate surety fail to promptly pay in full the forfeited bond, it is disqualified from writing any further surety bonds under this article.

(i) Additional bond procedures shall be provided in legislative rules proposed by the director and promulgated in accordance with the provisions of chapter twenty-nine-a of this code.

(j) The liability under the bond is for the duration of the permit and for a period of two years after reclamation unless previously released, in whole or part, as provided in section twenty-one of this article.

§22-4-21. Release of bonds.

On completion of the reclamation, and after the requirements of the permit have been fully complied with, the director shall release the bond. An amount of the bond or cash deposit, proportioned to the reclaimed portion of the disturbed land in ratio to all of the disturbed land covered by the permit, may be released on application by the permittee and inspection and approval by the director. Performance bonds shall be released upon acceptance into the bond pooling fund and payment of the required fees. Performance bonds for the transferor of a permit shall be released after the transferee posts a bond acceptable to the director.

§22-4-22. Bond pooling fund.

(a) Quarry operators who have operated for five years without a serious violation under previous West Virginia mining law or the provisions of this article, in lieu of the bonding requirements of section twenty of this article, shall contribute to the "Bond Pooling Fund," as provided in this section.

(b) For each quarry, permittees contributing to the pool shall make an initial payment to the fund of $50 for each acre currently disturbed plus each acre estimated to be newly disturbed during the next ensuing year. Thereafter, the permittee shall make an annual payment of $12.50 for each disturbed acre plus each acre estimated to be newly disturbed during the next ensuing year. The payments shall continue until the permittee has paid into the bond pooling fund a total of $1,000 for each disturbed acre.

(c) There is hereby created in the State Treasury a special revenue fund known as the "Bond Pooling Fund." The fund shall operate as a special fund whereby all deposits and payments thereto do not expire to the General Revenue Fund, but shall remain in the fund and be available for expenditure in succeeding fiscal years. This fund shall consist of fees collected by the director in accordance with the provisions of this article. Interests of moneys from this fund shall be deposited in the quarry reclamation fund as established in section twenty-three of subsection (b) of this section. Interest earned on moneys in this fund shall be deposited in the quarry reclamation fund as established in section twenty-three of this article.

(d) No annual bond pooling fund deposits may be collected from permittees where the permit bond pooling fund deposits divided by the number of disturbed acres bonded is equal to or greater than one thousand per acre.

(e) Permittee deposits into the bond pooling fund shall be released under any of the following conditions:

(1) On completion of the quarrying and reclamation, and after all permit requirements have been fully complied with, the director shall return all bond pooling fund deposits to the permittee consistent with the bonding release requirements of section twenty-one of this article.

(2) When the bond pooling fund balance for a permittee exceeds $1,000 for each disturbed acre and each acre estimated to be disturbed during the next ensuing year the director shall return the excess funds to the permittee.

(f) The interest transferred to the quarry reclamation fund under subsection (c) of this section shall be used to reclaim abandoned quarry lands as provided in section twenty-three of this article.

(g) If a permit is revoked pursuant to this article the payments that the permittee has made to the bond pooling fund for that permit shall be forfeited. The director shall use those forfeited payments for the reclamation of the quarry to which it applied.

(h) If the cost of reclamation exceeds the amount of payments the permittee shall be liable for the reclamation costs that exceed the permittee's payments to the bond pooling fund.

§22-4-23. Quarry reclamation fund.

(a) All funds received by the division from forfeiture of bonds, civil administrative penalties, or interest from the bond pooling fund shall be deposited into a special interest-bearing account in the state Treasury designated the Quarry Reclamation Fund. The quarry reclamation fund shall be used by the division for reclamation of abandoned quarries.

(b) If the forfeiture of a performance bond or bonding pool fund payments exceeds the cost of reclamation for which the liability was charged, any excess amount shall be deposited into the quarry reclamation fund.

(c) Reclamation projects that are to be financed by the quarry reclamation fund shall be designed by the division.

(d) The director shall administer and approve all expenditures from the quarry reclamation fund.

(e) The division shall compile a list of abandoned quarries in the state and rank them in order of need for reclamation.

§22-4-24. Orders, inspections and enforcement; permit revocation, damages, civil and criminal penalties.

(a) The director may at reasonable times without prior notice and upon presentation of appropriate credentials, enter any quarry and conduct periodic inspections and examine any required documentation to effectively implement and enforce the provisions of this article and rules promulgated thereunder.

(b) Whenever the director finds that an ongoing quarry operation is causing or is likely to cause imminent and substantial harm to the environment, public safety, or public health, the director may order immediate cessation of such operations, or portions of operations, and shall take other action as is deemed necessary to avoid adverse impact to the area.

(c) If the director, upon inspection or investigation observes, discovers or learns of a violation of this article, rules promulgated thereunder, or any permit condition or order issued under this article, he or she shall:

(1) Issue an order stating with reasonable specificity the nature of the alleged violation and requiring compliance immediately or within a specified time. An order under this section includes, but is not limited to, any or all of the following: Notice of noncompliance, orders suspending, revoking or modifying permits, consent agreements which provide opportunity for correction without further agency action, orders requiring a permittee to take remedial action within a specified time, and cease and desist orders;

(2) Seek an injunction in accordance with subsection (g) of this section;

(3) Revoke the permit and pursue an appropriate remedy as provided in this section;

(4) Institute a civil action in accordance with subsection (g) of this section; or

(5) Request the prosecuting attorney of the county wherein the alleged violation occurred, to bring an appropriate action, either civil or criminal in accordance with subsection (g) or (h) of this section.

(d) If the operator has not reached an agreement with the director or has not complied with the requirements set forth in the notice of noncompliance or order of suspension within the time limits set therein, the permit may be revoked by order of the director and the performance bond or contributions to the bonding pooling fund shall then be forfeited. If an agreement satisfactory to the director has not been reached within thirty days after suspension of any permit, any and all suspended permits shall then be declared revoked and the performance bonds or contributions to the bond pooling fund with respect thereto forfeited.

(e) Any person who violates any provision of this article, any permit condition or any rule or order issued pursuant to this article is subject to a civil administrative penalty, to be levied by the director, of not more than $5,000 for each day of such violation, not to exceed a maximum of $20,000. The director may accept in kind assessment by reclamation of an abandoned quarry site in lieu of cash payment of a civil administrative penalty.

In assessing any such penalty, the director shall take into account the seriousness of the violation and any good faith efforts to comply with the applicable requirements as well as any other appropriate factors as may be established by rules promulgated pursuant to this article and article three, chapter twenty-nine-a of this code. No assessment shall be levied pursuant to this subsection until after the alleged violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, order or statement of permit conditions that was allegedly violated, a concise statement of the facts alleged to constitute the violation, a statement of the amount of the administrative penalty to be imposed and a statement of the alleged violator's right to an informal hearing. The alleged violator has twenty calendar days from receipt of the notice within which to deliver to the director a written request for an informal hearing. If no hearing is requested, the notice becomes a final order after the expiration of the twenty-day period. If a hearing is requested, the director shall inform the alleged violator of the time and place of the hearing.

The director may appoint an assessment officer to conduct the informal hearing and then make a written recommendation to the director concerning the assessment of a civil administrative penalty. Within thirty days following the informal hearing, the director shall issue and furnish to the alleged violator a written decision, and the reasons therefor, concerning the assessment of a civil administrative penalty. Within thirty days after notification of the director's decision, the alleged violator may request a formal hearing before the surface mine board. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions of this article and the payment of any assessment does not affect the availability of any other enforcement provision in connection with the violation for which the assessment is levied. No combination of assessments against a violator under this section shall exceed $5,000 for each day of such violation: Provided, That any violation for which the violator has paid a civil administrative penalty assessed under this section shall not be the subject of a separate civil penalty action under this article to the extent of the amount of the civil administrative penalty paid. All administrative penalties shall be levied in accordance with this article and rules issued pursuant to this article. The net proceeds of assessments collected pursuant to this subsection shall be deposited in the quarry reclamation fund established in section twenty-three of this article. No assessment levied pursuant to this subsection becomes due and payable until the procedures for review of such assessment as set out herein have been completed.

(f) Any person who violates any provision of this article, any permit condition, rule or order issued pursuant to this article is subject to a civil penalty not to exceed $5,000 for each day of such violation, which penalty shall be recovered in a civil action either in the circuit court wherein the violation occurs or in the circuit court of Kanawha County.

(g) The director may seek an injunction, or may institute a civil action against any person in violation of any provisions of this article or any permit condition, rule or order issued pursuant to this article. In seeking an injunction, it is not necessary for the director to post bond nor to allege or prove at any stage of the proceeding that irreparable damage will occur if the injunction is not issued or that the remedy at law is inadequate. An application for injunctive relief or a civil penalty action under this section may be filed and relief granted notwithstanding the fact that all administrative remedies provided for in this article have not been exhausted or invoked against the person or persons against whom such relief is sought.

(h) Any person who willfully or negligently violates the provisions of this article, any permit condition or any rule or order issued pursuant to this article is subject to the same criminal penalties as set forth in section twenty-four, article eleven of this chapter.

(i) Upon request of the director, the prosecuting attorney of the county in which the violation occurs shall assist the director in any civil or criminal action under this section.

(j) In any civil action brought pursuant to the provisions of this section, the state, or any agency of the state which prevails, may be awarded costs, reasonable attorney's fees, and, when a permit has been revoked, any actual costs incurred by the agency to complete reclamation of a permitted site above and beyond moneys received as a result of bond forfeiture.

(k) In addition to and notwithstanding any other penalties provided herein, any operator who directly causes damage to the property of others as a result of quarrying is liable to them, in an amount not in excess of three times the provable amount of such damage, if and only if such damage occurs before or within one year after such operator has completed all reclamation work with respect to the land on which such quarrying was carried out and all bonds of such operator with respect to such reclamation work are released. Such damages are recoverable in an action at law in any court of competent jurisdiction.

(l) The director may reinstate a revoked permit and allow resumption of quarrying upon a finding that the circumstance causing the revocation has been abated and the director has determined that the cause of the revocation will not reoccur upon reinstatement.

(m) It is unlawful for the owner or owners of surface rights or the owner or owners of mineral rights to interfere with the operator in the discharge of the operator's obligation to the state for the reclamation of lands disturbed by the operator. The director may initiate an action pursuant to either subsection (g) or (h) of this section, to enforce this prohibition.

§22-4-25. Appeals to board.

Any person claiming to be aggrieved or adversely affected by any ruling or order of the director or his or her failure to enter an order may appeal to the surface mine board, pursuant to the provisions of article one, chapter twenty-two-b of this code, for an order vacating or modifying the ruling or order, or for an order that the director should have entered.

§22-4-26. Required fees, quarry inspection and enforcement fund.

The permit application fee is $1,000. The fee for the original permit is $1,000. The permit renewal fee of $500 shall be submitted with the renewal application and a progress report map. The fee for transferring a permit is $500. The fee for a minor permit modification is $200 and for major modifications, $500. There is hereby created in the state Treasury a special revenue fund known as the Quarry Inspection and Enforcement Fund. The fund shall operate as a special fund whereby all deposits and payments thereto do not expire to the General Revenue Fund, but shall remain in the fund and be available for expenditure in succeeding fiscal years. This fund shall consist of fees collected by the director in accordance with the provisions of this section, as well as interest earned on investments made from moneys deposited in the fund. Moneys from this fund shall be expended by the director for the administration, permitting, enforcement, inspection, monitoring and other activities required by this article.

§22-4-27. Exception for certain existing quarries.

(a) Quarries that are in operation on or before the effective date of this article, shall comply with the following:

(1) Within two years of the effective date of this article, all quarry operations shall submit to the director a quarrying and reclamation plan to bring the facility into compliance with the requirements of this article and any rules promulgated thereunder. These quarrying and reclamation plans shall include a reasonable schedule, based on site specific conditions and the nature of the quarry operation, to allow a transitional time period to bring the operation into compliance with current reclamation standards. Quarry areas that are disturbed on the effective date of this article are exempt from further reclamation requirements. For the purpose of this section, disturbed areas include existing highwalls and all material vertically below the surface of the area disturbed.

(2) Preblast survey and blasting plan requirements as provided for existing quarries as provided by section twelve of this article.

(3) Groundwater protection monitoring required by section fourteen of this article will not be required if the director verifies the operator's certification that no groundwater problems at the quarry have occurred in the previous five years.

(b) The exclusions of this section are also applicable to quarries permitted on or before the effective date of this article and consolidated or renewed pursuant to subsection (f) of section five of this article.

(c) Quarries in operation as of the effective date of this article for the past five years without a serious permit violation, shall participate in the bond pooling fund created in section twenty-two of this article. All other operations shall comply with the bonding requirements of section twenty of this article.

§22-4-28. Persons ineligible for a permit.

No public officer or employee in the division having any responsibility or duty either directly or of a supervisory nature with respect to the administration or enforcement of this article may:

(1) Engage in quarrying as a sole proprietor or as a partner;

(2) Be an officer, director, stockholder, owner or part owner of any corporation or other business entity engaged in quarrying; or

(3) Be employed as an attorney, agent or in any other capacity by any person, partnership, firm, association, trust or corporation engaged in quarrying.

Any violation of this section by any public officer or employee subject to the prohibitions contained in this section is grounds for removal from office or dismissal from employment, as the case may be.

§22-4-29. Exemptions.

(a) The provisions of this article do not apply to activities of the West Virginia Department of Transportation or any legally constituted public governing entities including municipal corporations or other political subdivisions, including the federal government, or to activities of any person acting under contract with any of these public agencies or entities, on highway rights-of-way or borrow pits owned, operated, or maintained solely in connection with the construction, repair and maintenance of the public roads system of the state or other public facilities. This exemption does not become effective until the public agencies or entities have adopted reclamation standards applying to the activities.

(b) The provisions of this article do not apply to quarrying on federal lands when performed under a valid permit from the appropriate federal agency having jurisdiction over the land.

(c) The provisions of this article do not apply to the following activities:

(1) Operations engaged only in processing minerals;

(2) Excavation or grading conducted solely in aid of on-site farming or on-site construction for purposes other than quarrying;

(3) Removal of overburden and of limited amounts of any mineral when done only for the purpose of prospecting and to the extent necessary to determine the location, quantity or quality of any natural deposit, if no minerals are sold, processed for sale or consumed in the regular operation of business;

(4) The handling, processing or storage of minerals on the premises of a manufacturer as a part of any manufacturing process that requires minerals as raw material;

(5) The removal or deposit of backfill material associated with construction, farming and noncommercial activities;

(6) Noncommercial quarry operations by a landowner if the disturbed area does not exceed one acre in area, upon notice to the director by the owner of his or her intent to establish the quarry.

§22-5-1. Declaration of policy and purpose.

It is hereby declared to be the public policy of this state and the purpose of this article to achieve and maintain such levels of air quality as will protect human health and safety, and to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of this state and facilitate the enjoyment of the natural attractions of this state.

To these ends it is the purpose of this article to provide for a coordinated statewide program of air pollution prevention, abatement and control; to facilitate cooperation across jurisdictional lines in dealing with problems of air pollution not confined within single jurisdictions; to assure the economic competitiveness of the state by providing for the timely processing of permit applications and other authorizations under this article; and to provide a framework within which all values may be balanced in the public interest.

Further, it is the public policy of this state to fulfill its primary responsibility for assuring air quality pursuant to the Federal Clean Air Act, as amended.

§22-5-2. Definitions.

The terms used in this article are defined as follows:

(1) “Air pollutants” means solids, liquids, or gases which, if discharged into the air, may result in a statutory air pollution.

(2) “Board” means the air quality board continued pursuant to the provisions of §22B-2-1 et seq. of this code.

(3) “Director” means the Secretary of the Department of Environmental Protection or such other person to whom the director has delegated authority or duties pursuant to §22-1-6 or §22-1-8 of this code.

(4) “Discharge” means any release, escape, or emission of air pollutants into the air.

(5) “Person” means any and all persons, natural or artificial, including the state of West Virginia or any other state, the United States of America, any municipal, statutory, public, or private corporation organized or existing under the laws of this or any other state or country, and any firm, partnership or association of whatever nature.

(6) “Statutory air pollution” means and is limited to the discharge into the air by the act of man of substances (liquid, solid, gaseous, organic or inorganic) in a locality, manner and amount as to be injurious to human health or welfare, animal or plant life, or property, or which would interfere with the enjoyment of life or property.

§22-5-3. Causing statutory pollution unlawful; article not to provide persons with additional legal remedies.

It is unlawful for any person to cause a statutory air pollution, to violate the provisions of this article, to violate any rules promulgated pursuant to this article to operate any facility subject to the permit requirements of the director without a valid permit, or to knowingly misrepresent to any person in the State of West Virginia that the sale of air pollution control equipment will meet the standards of this article or any rules promulgated pursuant to this article. Nothing contained in this article provides any person with a legal remedy or basis for damages or other relief not otherwise available to such person immediately prior to enactment of this article.

§22-5-4. Powers and duties of director; and legal services; rules.

(a) The director is authorized:

(1) To develop ways and means for the regulation and control of pollution of the air of the state;

(2) To advise, consult and cooperate with other agencies of the state, political subdivisions of the state, other states, agencies of the federal government, industries, and with affected groups in furtherance of the declared purposes of this article;

(3) To encourage and conduct such studies and research relating to air pollution and its control and abatement as the director may deem advisable and necessary;

(4) To promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code not inconsistent with the provisions of this article, relating to the control of air pollution: Provided, That no rule of the director shall specify a particular manufacturer of equipment nor a single specific type of construction nor a particular method of compliance except as specifically required by the “Federal Clean Air Act,” as amended, nor shall any such rule apply to any aspect of an employer-employee relationship: Provided, however, That no legislative rule or program of the director hereafter adopted shall be any more stringent than any federal rule or program except to the limited extent that the director first makes a specific written finding for any such departure that there exists scientifically supportable evidence for such rule or program reflecting factors unique to West Virginia or some area thereof;

(5) To enter orders requiring compliance with the provisions of this article and the rules lawfully promulgated hereunder;

(6) To consider complaints, subpoena witnesses, administer oaths, make investigations and hold hearings relevant to the promulgation of rules and the entry of compliance orders hereunder;

(7) To encourage voluntary cooperation by municipalities, counties, industries, and others in preserving the purity of the air within the state;

(8) To employ personnel, including specialists and consultants, purchase materials and supplies, and enter into contracts necessary, incident, or convenient to the accomplishment of the purpose of this article;

(9) To enter and inspect any property, premise, or place on or at which a source of air pollutants is located or is being constructed, installed, or established at any reasonable time for the purpose of ascertaining the state of compliance with this article and rules promulgated under the provisions of this article. No person shall refuse entry or access to any authorized representative of the director who requests entry for purposes of inspection, and who presents appropriate credentials; nor shall any person obstruct, hamper or interfere with any such inspection: Provided, That nothing contained in this article eliminates any obligation to follow any process that may be required by law;

(10) Upon reasonable evidence of a violation of this article, which presents an imminent and serious hazard to public health, to give notice to the public or to that portion of the public which is in danger by any and all appropriate means;

(11) To cooperate with, receive and expend money from the federal government and other sources.

(12) To cooperate with any public or private agency or person and receive therefrom and on behalf of the state gifts, donations, and contributions, which shall be deposited to the credit of the “Air Pollution Education and Environment Fund” which is hereby continued in the state Treasury.

(A) The moneys collected pursuant to this article which are directed to be deposited in the “Air Pollution Education and Environment Fund” must be deposited in a separate account in the state Treasury and expenditures for purposes set forth in this article are not authorized from collection but are to be made only in accordance with appropriation and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions set forth in §5A-2-1 et seq. of this code.

(B) Moneys in the fund, if not needed for immediate use or disbursement, may be invested or reinvested by the agency in obligations or securities which are considered lawful investments for public funds under this code.

(C) At the end of each fiscal year, any unexpended balance, including accrued interest, on deposit in the Air Pollution Education and Environment Fund shall not be transferred to the General Revenue Fund, but shall remain in the Air Pollution Education and Environment Fund for expenditure pursuant to this section.

(13) To represent the state in any and all matters pertaining to plans, procedures, and negotiations for interstate compacts in relation to the control of air pollution;

(14) To appoint advisory councils from such areas of the state as he or she may determine. The members shall possess some knowledge and interest in matters pertaining to the regulation, control, and abatement of air pollution. The council may advise and consult with the director about all matters pertaining to the regulation, control, and abatement of air pollution within such area;

(15) To require any and all persons who are directly or indirectly discharging air pollutants into the air to file with the director such information as the director may require in a form or manner prescribed by him or her for such purpose, including, but not limited to, location, size and height of discharge outlets, processes employed, fuels used and the nature and time periods of duration of discharges. Such information shall be filed with the director, when and in such reasonable time, and in such manner as the director may prescribe;

(16) To require the owner or operator of any stationary source discharging air pollutants to install such monitoring equipment or devices as the director may prescribe and to submit periodic reports on the nature and amount of such discharges to the director;

(17) To do all things necessary and convenient to prepare and submit a plan or plans for the implementation, maintenance and enforcement of the “Federal Clean Air Act,” as amended: Provided, That in preparing and submitting each such plan the director shall establish in such plan that such standard shall be first achieved, maintained and enforced by limiting and controlling emissions of pollutants from commercial and industrial sources and locations and shall only provide in such plans for limiting and controlling emissions of pollutants from private dwellings and the curtilage thereof as a last resort: Provided, however, That nothing herein contained affects plans for achievement, maintenance and enforcement of motor vehicle emission standards and of standards for fuels used in dwellings;

(18) To promulgate legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, providing for the following:

(A) Procedures and requirements for permit applications, transfers and modifications and the review thereof;

(B) Imposition of permit application and transfer fees;

(C) Establishment of criteria for construction, modification, relocation, and operating permits;

(D) Imposition of permit fees and of certificate fees: Provided, That any person subject to operating permit fees pursuant to section twelve of this article is exempt from imposition of the certificate fee; and

(E) Imposition of fees, and penalties and interest for the nonpayment of fees.

(i) The fees, penalties, and interest shall be deposited in a special account in the State Treasury designated the “Air Pollution Control Fund”, formerly the “Air Pollution Control Commission Fund”, which is hereby continued to be appropriated for the sole purpose of paying salaries and expenses of the board, the division of air quality and their employees to carry out the provisions of this article: Provided, That the fees, penalties and interest collected for operating permits required by section twelve of this article shall be expended solely to cover all reasonable direct and indirect costs required to administer the operating permit program.

(ii) The fees collected pursuant to this subdivision must be deposited in a separate account in the State Treasury and expenditures for purposes set forth in this article are not authorized from collections but are to be made only in accordance with appropriation and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions set forth in §5A-2-1 et seq. of this code.

(iii) Moneys in the fund, if not needed for immediate use or disbursement, may be invested or reinvested by the agency in obligations or securities which are considered lawful investments for public funds under this code.

(iv) At the end of each fiscal year, any unexpended balance, including accrued interest, on deposit in the Air Pollution Control Fund shall not be transferred to the General Revenue Fund, but shall remain in the Air Pollution Control Fund for expenditure pursuant to this section. 

(19) Receipt of any money by the director as a result of the entry of any consent order shall be deposited in the State Treasury to the credit of the Air Pollution Education and Environment Fund.

(b) The Attorney General and his or her assistants and the prosecuting attorneys of the several counties shall render to the director without additional compensation such legal services as the director may require of them to enforce the provisions of this article.

§22-5-5. Issuance of cease and desist orders by director; service; permit suspension, modification and revocation; appeals to board.

If, from any investigation made by the director or from any complaint filed with him or her, the director is of the opinion that a person is violating the provisions of this article, or any rules promulgated pursuant thereto, he or she shall make and enter an order directing the person to cease and desist the activity, unless the director determines the violation is of a minor nature or the violation has been abated. The director shall fix a reasonable time in such order by which the activity must stop or be prevented. The order shall contain the findings of fact upon which the director determined to make and enter the order.

If, after any investigation made by the director, or from any complaint filed with him or her, the director is of the opinion that a permit holder is violating the provisions of this article, or any rules promulgated pursuant thereto, or any order of the director, or any provision of a permit, the director may issue notice of intent to suspend, modify or revoke and reissue such permit. Upon notice of the director's intent to suspend, modify or revoke a permit, the permit holder may request a conference with the director to show cause why the permit should not be suspended, modified or revoked. The request for conference must be received by the director within fifteen days following receipt of notice. After conference or fifteen days after issuance of notice of intent, if no conference is requested, the director may enter an order suspending, modifying or revoking the permit and send notice to the permit holder. Such order is a cease and desist order for purposes of administrative and judicial review and shall contain findings of fact upon which the director determined to make and enter the order. If an appeal of the director's order is filed, the order of the director shall be stayed from the date of issuance pending a final decision of the board.

The director shall cause a copy of any such order to be served upon the person by registered or certified mail or by any proper law-enforcement officer.

Any person upon whom a copy of the final order has been served may appeal such order to the air quality board pursuant to the provisions of article one, chapter twenty-two-b of this code.

§22-5-6. Penalties; recovery and disposition; duties of prosecuting attorneys.

(a) Any person who violates any provision of this article, any permit or any rule or order issued pursuant to this article or article one, chapter twenty-two-b of this code is subject to a civil penalty not to exceed $10,000 for each day of such violation, which penalty shall be recovered in a civil action brought by the director in the name of the State of West Virginia in the circuit court of any county wherein the person resides or is engaged in the activity complained of or in the circuit court of Kanawha County. The amount of the penalty shall be fixed by the court without a jury: Provided, That any person is not subject to civil penalties unless the person has been given written notice thereof by the director: Provided, however, That for the first such minor violation, if the person corrects the violation within the time as was specified in the notice of violation issued by the director, no civil penalty may be recovered: Provided further, That if the person fails to correct a minor violation or for any serious or subsequent serious or minor violation, the person is subject to civil penalties imposed pursuant to this section from the first day of the violation notwithstanding the date of the issuance or receipt of the notice of violation. The director shall, by rule subject to the provisions of chapter twenty-nine-a of this code, determine the definitions of serious and minor violations. The amount of any penalty collected by the director shall be deposited in the general revenue of the state Treasury according to law.

(b)(1) Any person who knowingly misrepresents any material fact in an application, record, report, plan or other document filed or required to be maintained under the provisions of this article or any rules promulgated under this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 or imprisoned in the county jail not more than six months or both fined and imprisoned: Provided, That if the violation occurs on separate days or is continuing in nature, the fine shall be no more than $25,000 for each day of such violation.

(2) Any person who knowingly violates any provision of this article, any permit or any rule or order issued pursuant to this article or article one, chapter twenty-two-b of this code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 for each day of such violation or imprisoned in the county jail not more than one year or both fined and imprisoned.

(c) Upon a request in writing from the director it is the duty of the Attorney General and the prosecuting attorney of the county in which any such action for penalties accruing under this section or section seven of this article may be brought to institute and prosecute all such actions on behalf of the director.

(d) For the purpose of this section, violations on separate days are separate offenses.

§22-5-7. Applications for injunctive relief.

The director may seek an injunction against any person in violation of any provision of this article or any permit, rule or order issued pursuant to this article or article one, chapter twenty-two-b of this code. In seeking an injunction, it is not necessary for the director to post bond nor to allege or prove at any stage of the proceeding that irreparable damage will occur if the injunction is not issued or that the remedy at law is inadequate. An application for injunctive relief brought under this section or for civil penalty brought under section six of this article may be filed and relief granted notwithstanding the fact that all administrative remedies provided in this article have not been exhausted or invoked against the person or persons against whom such relief is sought.

In any action brought pursuant to the provisions of section six or of this section, the state, or any agency of the state which prevails, may be awarded costs and reasonable attorney's fees.

§22-5-8. Emergencies.

Whenever air pollution conditions in any area of the state become such as, in the opinion of the director, to create an emergency and to require immediate action for the protection of the public health, the director may, with the written approval of the Governor, so find and enter such order as it deems necessary to reduce or prevent the emission of air pollutants substantially contributing to such conditions. In any such order the director shall also fix a time, not later than twenty-four hours thereafter, and place for a hearing to be held before it for the purpose of investigating and determining the factors causing or contributing to such conditions. A true copy of any such order shall be served upon persons whose interests are directly prejudiced thereby in the same manner as a summons in a civil action may be served, and a true copy of such order shall also be posted on the front door of the courthouse of the county in which the alleged conditions originated. All persons whose interests are prejudiced or affected in any manner by any such order shall have the right to appear in person or by counsel at the hearing and to present evidence relevant to the subject of the hearing. Within twenty-four hours after completion of the hearing the director shall affirm, modify or set aside said order in accordance and consistent with the evidence adduced. Any person aggrieved by such action of the director may thereafter apply by petition to the circuit court of the county for a review of the director's action. The circuit court shall forthwith fix a time for hearing de novo upon the petition and shall, after such hearing, by order entered of record, affirm, modify or set aside, in whole or in part, the order and action of the director. Any person whose interests shall have been substantially affected by the final order of the circuit court may appeal the same to the Supreme Court of Appeals in the manner prescribed by law.

§22-5-9. Powers reserved to Secretary of the Department of Health, Commissioner of Bureau for Public Health, local health boards and political subdivisions; conflicting statutes repealed.

Nothing in this article affects or limits the powers or duties heretofore conferred by the provisions of chapter sixteen of this code upon the Secretary of the Department of Health, the Commissioner of the Bureau for Public Health, county health boards, county health officers, municipal health boards, municipal health officers, combined boards of health or any other health agency or political subdivision of this state except insofar as such powers and duties might otherwise apply to the control, reduction or abatement of air pollution. All existing statutes or parts of statutes are, to the extent of their inconsistencies with the provisions of this article and to the extent that they might otherwise apply to the control, reduction or abatement of air pollution, hereby repealed: Provided, That no ordinance previously adopted by any municipality relating to the control, reduction or abatement of air pollution is repealed by this article.

§22-5-10. Records, reports, data or information; confidentiality; proceedings upon request to inspect or copy.

(a) All air quality data, emission data, permits, compliance schedules, orders of the director, board orders and any other information required by a federal implementation program (all for convenience hereinafter referred to in this section as "records, reports, data or information") obtained under this article shall be available to the public, except that upon a showing satisfactory to the director, by any person, that records, reports, data or information or any particular part thereof, to which the director has access under this article if made public, would divulge methods or processes entitled to protection as trade secrets of the person, the director shall consider these records, reports, data or information or a particular portion thereof confidential: Provided, That this confidentiality does not apply to the types and amounts of air pollutants discharged and that these records, reports, data or information may be disclosed to other officers, employees or authorized representatives of the state or of the federal environmental protection agency concerned with enforcing this article, the federal Clean Air Act, as amended, or the federal Resource Conservation and Recovery Act, as amended, when relevant to any official proceedings thereunder: Provided, however, That the officers, employees or authorized representatives of the state or federal environmental protection agency protect these records, reports, data or information to the same degree required of the director by this section. The director shall promulgate legislative rules regarding the protection of records, reports, data or information, or trade secrets, as required by this section.

(b) Upon receipt of a request for records, reports, data or information which constitute trade secrets and prior to making a final determination to grant or deny the request, the director shall notify the person claiming that any record, report, data or information is entitled to protection as a trade secret, and allow the person an opportunity to respond to the request in writing.

(c) All requests to inspect or copy documents must state with reasonable specificity the documents or type of documents sought to be inspected or copied. Within five business days of the receipt of a request, the director or his or her designate shall by order: (1) Advise the person making the request of the time and place at which the person may inspect and copy the documents, which, if the request addresses information claimed as confidential, may not be sooner than thirty days following the date of the determination to disclose, unless an earlier disclosure date is agreed to by the person claiming the confidentiality; or (2) deny the request, stating in writing the reasons for denial. If the request addresses information claimed as confidential, notice of the action taken pursuant to this subsection shall also be provided to the person asserting the claim of confidentiality.

 Any person adversely affected by a determination, by order or otherwise, regarding information confidentiality under this article may appeal the determination to the air quality board pursuant to the provisions of article one, chapter twenty-two-b of this code. The filing of a timely notice of appeal shall stay any determination, by order or otherwise, to disclose confidential information pending a final decision on the appeal. The scope of review is limited to the question of whether the records, reports, data or other information, or any particular part thereof sought to be inspected or copied, are entitled to be treated as confidential under subsection (a) of this section. The air quality board shall afford evidentiary protection in appeals as is necessary to protect the confidentiality of the information at issue, including the use of in camera proceedings and the sealing of records where appropriate.

(d) In lieu of the provision of chapter twenty-nine-b of this code, the provision of this section shall apply to determinations of confidentiality.

§22-5-11. Construction, modification or relocation permits required for stationary sources of air pollutants.

(a) Unless otherwise specifically provided in this article, no person shall construct, modify or relocate any stationary source of air pollutants without first obtaining a construction, modification or relocation permit as provided in this article.

(b) The secretary shall by rule specify the class or categories of stationary sources to which this section applies. Application for permits shall be made upon such form, in such manner, and within such time as the rule prescribes and shall include such information, as in the judgment of the secretary, will enable him or her to determine whether such source will be so designed as to operate in conformance with the provisions of this article or any rules of the secretary.

(c) Unless otherwise specifically provided in this article, the secretary shall issue a permit for a major stationary source within a reasonable time not to exceed three hundred sixty-five calendar days, after the secretary determines that the application is complete.

(d) Unless otherwise specifically provided in this article, the secretary shall issue a permit for all other sources including modifications of existing major stationary sources which are not major modifications within a reasonable time not to exceed ninety calendar days, after the date the secretary determines the application is complete. The Secretary may extend this time by thirty calendar days to allow for public comment.

(e) A permit application will be denied if the secretary determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated thereunder.

(f) For purposes of this section, a modification is any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant discharged by a source above the de minimis level set by the secretary.

(g) With respect to the construction of new nonmajor stationary sources, or modifications of nonmajor stationary sources, or modifications which are not major modifications to existing major stationary sources, or relocations of nonmajor stationary sources, the following requirements apply:

(1) The secretary shall issue an administrative update to a permit issued under this section with respect to any of these sources, unless he or she determines that the proposed administrative update will not be in accordance with this article or rules promulgated hereunder, in which case the secretary shall issue an order denying the administrative update. Any administrative update shall be issued by the secretary within a reasonable time not to exceed sixty calendar days after receipt of a complete application. Administrative updates are minor revisions of existing permits as further described and authorized by rule.

(2) The secretary shall, within a reasonable time not to exceed forty-five calendar days after the date the secretary determines that an application is complete, issue a registration under a general permit applicable to any of these sources, unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated hereunder. General permits are permits authorizing the construction, modification or relocation of a category of sources by the same owner or operator or involving the same or similar processes or pollutants upon the terms and conditions specified in the general permit for those types of sources.

(3) The secretary shall, within a reasonable time not to exceed forty-five calendar days after receipt of a complete application, issue a temporary permit or a relocation permit, unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated hereunder. Temporary permits are permits authorizing the owner or operator to make limited changes for limited periods of time as further described and authorized by rule.

(h) The secretary shall determine whether an application filed under this section is complete within thirty calendar days after receipt of that application at which time the secretary shall notify the applicant in writing as to whether the application is complete or specify any additional information required for the application to be complete.

(i) The secretary, shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty nine-a of this code, to implement the provisions of this section by August 1, 2008.

§22-5-11a. Activities authorized in advance of permit issuance.

(a) With respect to the modifications of nonmajor stationary sources, or modifications which are not major modifications to existing major stationary sources, the following activities are authorized in advance of permit issuance. Any authorized activities undertaken by or on behalf of the permit applicant prior to the issuance of a final permitting action by the secretary are undertaken at the permit applicant's own risk and with the knowledge that the application for a permit or permit modification may be denied:

(1) Receiving or storing on-site or off-site any equipment or supplies which make up in part or in whole an emission unit or any support equipment, facilities, building or structure.

(2) A person who holds an active West Virginia air quality permit issued under this article at an existing source, and who has applied to the secretary for permission to alter, expand or modify that source or to allow a new emissions unit at that source, may begin the construction of any such alteration, expansion, modification or new emission unit in advance of permit issuance in accordance with this section. The person may not operate any altered, expanded, modified or new emission unit without first obtaining an air quality permit as required by rules promulgated by the secretary.

(3) The following sources are ineligible for submission of an application for permission to commence construction in advance of permit issuance:

(A) Sources subject to the "Federal Clean Air Act" subsections 112(g) or 112(j).

(B) Sources seeking federally enforceable permit conditions in order to avoid otherwise applicable standards;

(C) Sources requiring a specific case-by-case emission limitation or standard under 45CSR21 or 45CSR27.

(4)(A) To qualify for the authorization to construct in advance of permit issuance as provided in this section, the permittee shall submit to the secretary an application for permission to commence construction in advance of permit issuance.

(B) Such application for permission to commence construction shall include all of the following:

(1) The name and location of the source and the name and address of the permittee;

(2) The permit number of each active permit issued under this article for such source;

(3) The nature of the sources and equipment associated with

such alteration, expansion, modification or new emission unit;

(4) An estimate of the maximum hourly and annual emissions of regulated air pollutants increased as a result of such alteration, expansion, modification or new emission unit;

(5) The air pollution control devices or methods that are to be employed in connection with the alteration, expansion, modification or new emission unit;

(6) A listing of the applicable state and federal air quality regulatory requirements for alteration, expansion, modification or new emission unit, and sufficient information which, in the judgement of the secretary, will demonstrate compliance with any applicable state and federal air quality regulatory requirements;

(7) The anticipated construction or building schedule for alteration, expansion, modification or new emission unit;

(8) A certification signed by the responsible official that the source, equipment and devices that are subject to a request for construction authorization will not be operated until the permittee has obtained a permit under rules promulgated by the secretary;

(9) A certification by the responsible official that any construction undertaken prior to the issuance of a final permit under rules of the secretary is undertaken at the permittee's own risk and with the knowledge that the permittee may be denied a permit or permit modification without regard to the permittee's financial investment or addition to or modification of the source;

(10) A certification signed by the responsible official that all of the information contained in the application is complete and accurate to the best of the responsible official's knowledge and ability; and

(11) Upon submission of the application for permission to construct, the applicant shall give notice by publishing a Class I legal advertisement of the applicant's intent to alter or expand the physical arrangement or operation of an existing stationary source and the opportunity to provide written comment to the secretary within thirty calendar days of the publication. The applicant shall post a visible and accessible sign, at a minimum 2 feet square, at the entrance to the source or proposed site. The sign must be clearly marked indicating that an air quality permit has been applied for and include the West Virginia Division of Air Quality permitting section telephone number and web site for additional information. The applicant must post the sign for the duration of the public notice period. Public notice shall be in a newspaper having general circulation in the county or counties where the facility is located. The notice shall contain the information required by rules promulgated by the secretary. Within fifteen days of completion of the public comment period, the secretary shall consider and respond to all written comments. If the secretary finds that concerns raised by the public comment period give rise to issues or concerns that would cause a construction or operational permit not to be issued, the secretary may issue a revocation or stay of the authorization to construct until those issues or concerns are resolved.

(c) The secretary shall determine whether an application for permission to commence construction in advance of permit issuance is complete within fifteen calendar days after receipt of the application at which time the secretary shall notify the applicant in writing as to whether the application is complete or specify any additional information required for the application to be complete.

(d) Within fifteen calendar days after the secretary has made a determination that an application for permission to commence construction in advance of permit issuance is complete, unless the secretary for good cause shown, extends the fifteen day time period for up to an additional fifteen calendar days, the secretary shall notify the applicant in writing of his or her determination as to whether each of the following conditions has or has not been satisfied:

(1) The applicant is and has been for a period of at least three years in substantial compliance with all other active permits and applicable state and federal air quality regulatory requirements under this article;

(2) The applicant has demonstrated that the alteration, expansion, modification or new emission unit will be in compliance with all applicable state and federal air quality regulatory requirements;

(3) The alteration, expansion, modification or new emission unit will not interfere with attainment or maintenance of an applicable ambient air quality standard, cause or contribute to a violation of an applicable air quality increment or be inconsistent with the intent and purpose of this article;

(4) The facility will be altered or expanded so that it will be used for either the same or a similar use as the use already permitted;

(5) The alteration or expansion will not result in a disproportionate increase in size of the facility already permitted; and

(6) The alteration or expansion will result in the same or substantially similar emissions as the facility already permitted.

If the secretary finds that all of the conditions have been satisfied, the notice issued by the secretary shall state that construction of the alteration, expansion, modification or new emission unit in advance of permit issuance may begin immediately. If the secretary finds that one or more of the conditions has not been met, the notice shall state that the requested construction, alteration, expansion, modification or new emission unit may not begin prior to issuance of a new or modified permit.

(e) If at any time during the construction of such alteration, expansion, modification or new emission unit, the secretary determines that the source is not likely to qualify for a permit or permit modification under applicable rules, the secretary may order that construction cease until the secretary makes a decision on the application for a permit or permit modification. If the secretary orders that construction cease, then construction of the alteration, expansion, modification or new emission unit may resume only if the secretary either makes a subsequent written determination that the circumstances that resulted in such order have been adequately addressed or if the secretary issues a permit or permit modification under the rules that authorize construction to resume.

(f) The secretary shall evaluate an application for a permit or permit modification under the rules and make a decision on the same basis as if the construction of the alteration, expansion, modification or new emission unit in advance of permit issuance had not been authorized pursuant to this section. No evidence regarding any contract entered into, financial investment made, construction undertaken, or economic loss incurred by any person or permittee who proceeds under this section without first obtaining a permit under this article is admissible in any contested case or judicial proceeding involving any permit required under the rules. No evidence as to any determination or order by the secretary pursuant to this section shall be admissible in any contested case or judicial proceeding related to any permit required under this article.

(g) Any permittee who proceeds under this section shall be precluded from bringing any action, suit or proceeding against the state, the officials, agents, and employees of the state or the secretary for any loss resulting from any contract entered into, financial investment made, construction undertaken, or economic loss incurred by the permittee in reliance upon the provisions of this section.

(h) This section does not relieve any person of the obligation to comply with any other requirement of state law, including any requirement to obtain any other permit or approval prior to undertaking any activity associated with preparation of the site or the alteration or expansion of the physical arrangement or method of operation of a source at a facility for which a permit is required under the rules.

(i) This section does not relieve any person from any preconstruction or construction prohibition imposed by any federal requirement, federal delegation, federally approved requirement in any state implementation plan, or federally approved requirement under the Title V permitting program, as determined solely by the secretary. This section does not apply to any construction, alteration, or expansion that is subject to requirements for prevention of significant deterioration or federal nonattainment new source review, as determined solely by the secretary. This section does not apply if it is inconsistent with any federal requirement, federal delegation, federally approved requirement in any state implementation plan, or federally approved requirement under the Title V permitting program, as determined solely by the secretary.

(j) A permittee who submits an application to commence construction in advance of permit issuance under this section shall pay to the department a fee of $200 for each application submitted to cover a portion of the administrative costs of implementing this section.

(k) The secretary, in accordance with chapter twenty-nine-a of this code, shall propose legislative rule that may be necessary to implement the provisions of this section by August 1, 2008.

(l) The secretary is directed to report back to the Joint Committee on Government and Finance by January 1, 2010, on the impact of the implementation of the expedited permits authorized pursuant to this section. The report shall include, but not be limited to, assessments regarding the number and types of facilities utilizing this section, whether the agency has found this expedited process has assisted these facilities to implement construction and make revisions to their operations efficiently, without adverse impacts on the agency, the permitting process, or statewide air quality.

§22-5-12. Operating permits required for stationary sources of air pollution.

No person may operate a stationary source of air pollutants without first obtaining an operating permit as provided in this section. The director shall promulgate legislative rules, in accordance with chapter twenty-nine-a of this code, which specify classes or categories of stationary sources which are required to obtain an operating permit. The legislative rule shall provide for the form and content of the application procedure including time limitations for obtaining the required permits. Any person who has filed a timely and complete application for a permit or renewal thereof required by this section, and who is abiding by the requirements of this article and the rules promulgated pursuant thereto is in compliance with the requirements of this article and any rule promulgated thereunder until a permit is issued or denied. Any legislative rule promulgated pursuant to the authority granted by this section shall be equivalent to and consistent with rules and regulations adopted by the administrator of United States environmental protection agency pursuant to Title IV and Title V of the Clean Air Act Amendments of 1990, 42 U.S.C. §7651 et seq. and 42 U.S.C. §7661 et seq., respectively: Provided, That such legislative rule may deviate from the federal rules and regulations where a deviation is appropriate to implement the policy and purpose of this article taking into account such factors unique to West Virginia.

§22-5-13. Consolidation of permits.

For permits required by sections eleven and twelve of this article, the director may incorporate the required permits with an existing permit or consolidate the required permits into a single permit.

§22-5-14. Administrative review of permit actions.

Any person whose interest may be affected, including, but not necessarily limited to, the applicant and any person who participated in the public comment process, by a permit issued, modified or denied by the secretary, or construction authorization pursuant to section eleven-a of this article, may appeal such action of the secretary to the air quality board pursuant to article one, chapter twenty-two-b of this code.

§22-5-15. Motor vehicle pollution, inspection and maintenance.

(a) As the state of knowledge and technology relating to the control of emissions from motor vehicles may permit or make appropriate and in furtherance of the purposes of this article, the director may provide by legislative rule for the control of emissions from motor vehicles. The legislative rule may prescribe requirements for the installation and use of equipment designed to reduce or eliminate emissions and for the proper maintenance of such equipment and of vehicles. Any legislative rule pursuant to this section shall be consistent with provisions of federal law, if any, relating to control of emissions from the vehicles concerned. The director shall not require, as a condition precedent to the initial sale of a vehicle or vehicular equipment, the inspection, certification or other approval of any feature or equipment designed for the control of emissions from motor vehicles, if such feature or equipment has been certified, approved or otherwise authorized pursuant to federal law.

(b) Except as permitted or authorized by law or legislative rule, no person shall fail to maintain in good working order or remove, dismantle or otherwise cause to be inoperative any equipment or feature constituting an operational element of the air pollution control system or mechanism of a motor vehicle required by rules of the director to be maintained in or on the vehicle. Any such failure to maintain in good working order or removal, dismantling or causing of inoperability subjects the owner or operator to suspension or cancellation of the registration for the vehicle by the Department of Transportation, Division of Motor Vehicles. The vehicle is not thereafter eligible for registration until all parts and equipment constituting operational elements of the motor vehicle have been restored, replaced or repaired and are in good working order.

(c) The Department of Transportation, Division of Motor Vehicles, Department of Administration, information and communication services division and the State Police shall make available technical information and records to the director to implement the legislative rule regarding motor vehicle pollution, inspection and maintenance. The director may promulgate a legislative rule establishing motor vehicle pollution, inspection and maintenance standards and imposing an inspection fee at a rate sufficient to implement the motor vehicle inspection program and shall do so when required pursuant to federal law regarding attainment of ambient air quality standards.

(d) The director may promulgate a legislative rule requiring maintenance of features of equipment in or on motor vehicles for the purpose of controlling emissions therefrom and shall do so when required pursuant to federal law regarding attainment of ambient air quality standards, and no motor vehicle may be issued a Division of Motor Vehicles registration certificate, or the existing registration certificate shall be revoked, unless the motor vehicle has been found to be in compliance with the director's legislative rule.

(e) The remedies and penalties provided in this section and section one, article three, chapter seventeen-a of this code, apply to violations hereof and the provisions of sections six or seven of this article do not apply thereto.

(f) As used in this section "motor vehicle" has the same meaning as in chapter seventeen-c of this code.

§22-5-16. Small business environmental compliance assistance program, compliance advisory panel.

The secretary of the Department of Commerce, labor, and environmental resources shall establish a small business stationary source technical and environmental compliance assistance program which meets the requirements of Title V of the Clean Air Act Amendments of 1990, 42 U.S.C. §7661 et seq. A compliance advisory panel composed of seven members appointed as follows shall be created to periodically review the effectiveness and results of this assistance program:

(a) Two members who are not owners, nor representatives of owners, of small business stationary sources, selected by the Governor to represent the general public;

(b) One member selected by the Speaker of the House of Delegates who is an owner or who represents owners of small business stationary sources;

(c) One member selected by the minority leader of the House of Delegates who is an owner or who represents owners of small business stationary sources;

(d) One member selected by the President of the Senate who is an owner or who represents owners of small business stationary sources;

(e) One member selected by the minority leader of the Senate who is an owner or who represents owners of small business stationary sources; and

(f) One member selected by the director to represent the director.

§22-5-17. Interstate ozone transport.

(a) This section of the Air Pollution Control Act may be referred to as the Interstate Ozone Transport Oversight Act.

(b) The Legislature hereby finds that:

(1) The federal Clean Air Act, as amended, contains a comprehensive regulatory scheme for the control of emissions from mobile and stationary sources, which will improve ambient air quality and health and welfare in all parts of the nation.

(2) The number of areas unable to meet national ambient air quality standards for ozone has been declining steadily and will continue to decline with air quality improvements resulting from implementation of the federal Clean Air Act amendments of 1990, and the mobile and stationary source emission controls specified therein.

(3) Scientific research on the transport of atmospheric ozone across state boundaries is proceeding under the auspices of the United States environmental protection agency (U.S. EPA), state agencies, and private entities, which research will lead to improved scientific understanding of the causes and nature of ozone transport, and emission control strategies potentially applicable thereto.

(4) The northeast ozone transport commission established by the federal Clean Air Act Amendments of 1990 has proposed emission control requirements for stationary and mobile sources in certain northeastern states and the District of Columbia in addition to those specified by the federal Clean Air Act amendments of 1990.

(5) Membership of the northeast ozone transport commission includes, by statute, representatives of state environmental agencies and Governors' offices; similar representation is required in the case of other ozone transport commissions established by the Administrator of the United States environmental protection agency pursuant to Section 176A of the federal Clean Air Act, as amended.

(6) The northeast ozone transport commission neither sought nor obtained state Legislative Oversight or approval prior to reaching its decisions on mobile and stationary source requirements for states included within the northeast ozone transport region.

(7) The Commonwealth of Virginia and other parties have challenged the Constitutionality of the northeast ozone transport commission and its regulatory proposals under the guarantee, compact, and joinder clauses of the United States Constitution.

(8) The United States environmental protection agency, acting outside of the aforementioned statutory requirements for the establishment of new interstate transport commissions, is encouraging the State of West Virginia and twenty-four other states outside of the northeast to participate in multistate negotiations through the ozone transport assessment group; such negotiations are intended to provide the basis for an interstate memorandum of understanding or other agreement on ozone transport requiring reductions of emissions of nitrogen oxides or volatile organic compounds in addition to those specified by the federal Clean Air Act amendments of 1990, membership of the ozone transport assessment group consists of state and federal air quality officials, without state legislative representation or participation by the Governor.

(9) Emission control requirements exceeding those specified by federal law can adversely affect state economic development, competitiveness, employment, and income without corresponding environmental benefits; in the case of electric utility emissions of nitrogen oxides, it is estimated that control costs in addition to those specified by the federal Clean Air Act could exceed $5 billion annually in a thirty-seven state region of the eastern United States, including the State of West Virginia.

(10) Requiring certain eastern states to meet emission control requirements more stringent than those otherwise applicable to other states and unnecessary for environmental protection would unfairly affect interstate competition for new industrial development and employment opportunities.

(c) It is therefore directed that:

(1) Not later than ten days subsequent to the receipt by the director of the Division of Environmental Protection of any proposed memorandum of understanding or other agreement by the ozone transport assessment group, or similar group, potentially requiring the State of West Virginia to undertake emission reductions in addition to those specified by the federal Clean Air Act, the director of the Division of Environmental Protection shall submit such proposed memorandum or other agreement to the President of the Senate and the Speaker of the House of Delegates for consideration.

(2) Upon receipt of the aforesaid memorandum of understanding or agreement, the President and the Speaker shall refer the understanding or agreement to one or more appropriate legislative committees with a request that such committees convene one or more public hearings to receive comments from agencies of government and other interested parties on its prospective economic and environmental impacts on the State of West Virginia and its citizens, including impacts on energy use, taxes, economic development, utility costs and rates, competitiveness and employment.

(3) Upon completion of the public hearings required by the preceding subdivision, the committees(s) shall forward to the president and the speaker a report containing its findings and recommendations concerning any proposed memorandum of understanding or other agreement related to the interstate transport of ozone. The report shall make findings with respect to the economic, health, safety and welfare and environmental impacts on the State of West Virginia and its citizens, including impacts on energy use, taxes, economic development, utility costs and rates, competitiveness and employment.

(4) Upon receipt of the report required by the preceding subdivision, the president and speaker shall thereafter transmit the report to the Governor for such further consideration or action as may be warranted.

(5) Nothing in this section shall be construed to preclude the Legislature from taking such other action with respect to any proposed memorandum of understanding or other agreement related to the interstate transport of ozone as it deems appropriate.

(6) No person is authorized to commit the State of West Virginia to the terms of any such memorandum or agreement unless specifically approved by an act of the Legislature.

§22-5-18. Market-based banking and trading programs, emissions credits; director to promulgate rules.

(a) The director shall propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code, to the full extent allowed by federal and state law, one or more rules establishing a voluntary emissions trading and banking program that provides incentives to make progress toward the attainment or maintenance of the national ambient air quality standards, the reduction or prevention of hazardous air contaminants or the protection of human health and welfare and the environment from air pollution.

(b) The director shall establish a system by legislative rule for quantifying, verifying, determining eligibility, registering, trading and using all emissions reduction credits, for banking and trading if achieved after January 1, 1991, to the extent permitted by federal law. Credits also shall be available for permanent shutdowns. Ten percent of any emission reduction credits registered with the director shall be retired from future use: Provided, That fifty percent of any emission reduction credits generated from permanent shutdowns prior to the effective date of the legislative rule or rules promulgated pursuant to this section shall be retired from future use. All other emissions reduction credits registered shall remain in effect until used and debited or retired. Credits not used within ten years shall be retired from future use. The director may charge a reasonable transaction fee at the time any credits are registered and shall deposit the fees in the air pollution control fund.

 The division may establish the emissions trading program as a state, multistate or regional program as long as the program contributes to the goal of improving the air quality in West Virginia and in the air quality region where the source is located.

§22-5-19. Inventory of greenhouse gases.

(a) The secretary shall establish a program to inventory greenhouse gas emissions from major sources that are subject to mandatory federal greenhouse gases reporting requirements. The secretary shall obtain available emissions data directly from the appropriate federal entity, including the United States Environmental Protection Agency.

(b) As used in this section, "greenhouse gas" means carbon dioxide, methane, nitrous oxide, hydroflurocarbons, perfluorocarbons and sulfur hexafluoride.

§22-5-20. Development of a state plan relating to carbon dioxide emissions from existing fossil fuel-fired electric generating units.

The West Virginia Department of Environmental Protection shall propose a legislative rule for promulgation in accordance with §29A-3-1 of this code to implement the Affordable Clean Energy rule, consisting of Emission Guidelines for Greenhouse Gas, Emissions from Existing Electric Utility Generating Units (EGUs) pursuant to the federal Clean Air Act, section 111(d). The proposed rule shall be filed with the Secretary of State in time for consideration during the 2021 legislative session. Notwithstanding any provision to the contrary, the agency shall submit a complete or partial state compliance plan to the federal Environmental Protection Agency no later than September 1, 2020, which may be comprised of one or more EGU facilities that are voluntarily prepared to move forward with a compliance plan for one or more of their EGUs.

§22-6-1. Definitions.

As used in this article:

(a) "Casing" means a string or strings of pipe commonly placed in wells drilled for natural gas or petroleum or both;

(b) "Cement" means hydraulic cement properly mixed with water;

(c) "Chair" means the chair of the West Virginia shallow gas well review board as provided for in section four, article eight, chapter twenty-two-c of this code;

(d) "Coal operator" means any person or persons, firm, partnership, partnership association or corporation that proposes to or does operate a coal mine;

(e) "Coal seam" and "workable coal bed" are interchangeable terms and mean any seam of coal twenty inches or more in thickness, unless a seam of less thickness is being commercially worked, or can in the judgment of the department foreseeably be commercially worked and will require protection if wells are drilled through it;

(f) "Director" means the Secretary of the Department of Environmental Protection as established in article one of this chapter or other person to whom the secretary has delegated authority or duties pursuant to sections six or eight, article one of this chapter.

(g) "Deep well" means any well other than a shallow well or coalbed methane well, drilled to a formation below the top of the uppermost member of the "Onondaga Group";

(h) "Expanding cement" means any cement approved by the office of oil and gas which expands during the hardening process, including, but not limited to, regular oil field cements with the proper additives;

(i) "Facility" means any facility utilized in the oil and gas industry in this state and specifically named or referred to in this article or in article eight or nine of this chapter, other than a well or well site;

(j) "Gas" means all natural gas and all other fluid hydrocarbons not defined as oil in this section;

(k) "Oil" means natural crude oil or petroleum and other hydrocarbons, regardless of gravity, which are produced at the well in liquid form by ordinary production methods and which are not the result of condensation of gas after it leaves the underground reservoirs;

(l) "Owner" when used with reference to any well, shall include any person or persons, firm, partnership, partnership association or corporation that owns, manages, operates, controls or possesses such well as principal, or as lessee or contractor, employee or agent of such principal;

(m) "Owner" when used with reference to any coal seam, shall include any person or persons who own, lease or operate such coal seam;

(n) "Person" means any natural person, corporation, firm, partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or any agency thereof;

(o) "Plat" means a map, drawing or print showing the location of a well or wells as herein defined;

(p) "Pollutant" has the same meaning as provided in section three, article eleven of this chapter;

(q) "Review board" means the West Virginia Shallow Gas Well Review Board as provided for in section four, article eight, chapter twenty-two-c of this code;

(r) "Safe mining through of a well" means the mining of coal in a workable coal bed up to a well which penetrates such workable coal bed and through such well so that the casing or plug in the well bore where the well penetrates the workable coal bed is severed;

(s) "Secretary" means the Secretary of the Department of Environmental Protection as established in article one of this chapter or other person to whom the secretary has delegated authority or duties pursuant to sections six or eight, article one of this chapter;

(t) "Shallow well" means any gas well, other than a coalbed methane well, drilled no deeper than one hundred feet below the top of the "Onondaga Group": Provided, That in no event may the "Onondaga Group" formation or any formation below the "Onondaga Group" be produced, perforated or stimulated in any manner;

(u) "Stimulate" means any action taken by a well operator to increase the inherent productivity of an oil or gas well, including, but not limited to, fracturing, shooting or acidizing, but excluding cleaning out, bailing or workover operations;

(v) "Waste" means (i) physical waste, as the term is generally understood in the oil and gas industry; (ii) the locating, drilling, equipping, operating or producing of any oil or gas well in a manner that causes, or tends to cause a substantial reduction in the quantity of oil or gas ultimately recoverable from a pool under prudent and proper operations, or that causes or tends to cause a substantial or unnecessary or excessive surface loss of oil or gas; or (iii) the drilling of more deep wells than are reasonably required to recover efficiently and economically the maximum amount of oil and gas from a pool; (iv) substantially inefficient, excessive or improper use, or the substantially unnecessary dissipation of, reservoir energy, it being understood that nothing in this chapter authorizes any agency of the state to impose mandatory spacing of shallow wells except for the provisions of section eight, article nine, chapter twenty-two-c of this code and the provisions of article eight, chapter twenty-two-c of this code; (v) inefficient storing of oil or gas: Provided, That storage in accordance with a certificate of public convenience issued by the Federal Energy Regulatory Commission is conclusively presumed to be efficient; and (vi) other underground or surface waste in the production or storage of oil, gas or condensate, however caused. Waste does not include gas vented or released from any mine areas as defined in section two, article one, chapter twenty-two-a of this code, or from adjacent coal seams which are the subject of a current permit issued under article two of chapter twenty-two-a of this code: Provided, however, That nothing in this exclusion is intended to address ownership of the gas;

(w) "Waters of this state" has the same meaning as the term "waters" as provided in section three, article eleven of this chapter;

(x) "Well" means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction or injection or placement of any liquid or gas, or any shaft or hole sunk or used in conjunction with such extraction or injection or placement. The term "well" does not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of core drilling or pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural or public use;

(y) "Well work" means the drilling, redrilling, deepening, stimulating, pressuring by injection of any fluid, converting from one type of well to another, combining or physically changing to allow the migration of fluid from one formation to another or plugging or replugging of any well; and

(z) "Well operator" or "operator" means any person or persons, firm, partnership, partnership association or corporation that proposes to or does locate, drill, operate or abandon any well as herein defined.

§22-6-2. Secretary – powers and duties generally; department records open to public; inspectors.

(a) The secretary shall have as his or her duty the supervision of the execution and enforcement of matters related to oil and gas set out in §22-6-1 et seq., §22-6A-1 et seq., §22-8-1 et seq., §22-9-1 et seq., §22-10-1 et seq., and §22-21-1 et seq. of this code.

(b) The secretary is authorized to propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code necessary to effectuate the above stated purposes.

(c) The secretary shall have full charge of the oil and gas matters set out in §22-6-1 et seq., §22-6A-1 et seq., §22-8-1 et seq., §22-9-1 et seq., §22-10-1 et seq., and §22-21-1 et seq. of this code. In addition to all other powers and duties conferred upon him or her, the secretary shall have the power and duty to:

(1) Supervise and direct the activities of the Office of Oil and Gas and see that the purposes set forth in §22-6-2(a) and §22-6-2(b) of this code are carried out;

(2) Determine the number of supervising oil and gas inspectors and oil and gas inspectors needed to carry out the purposes of §22-6-1 et seq., §22-6A-1 et seq., §22-8-1 et seq., §22-9-1 et seq., §22-10-1 et seq., and §22-21-1 et seq. of this code and appoint them as such. All appointees must be qualified civil service employees, but no person is eligible for appointment until he or she has served in a probationary status for a period of six months to the satisfaction of the secretary;

(3) Supervise and direct such oil and gas inspectors and supervising inspectors in the performance of their duties;

(4) Make investigations or inspections necessary to ensure compliance with and to enforce the provisions of §22-6-1 et seq., §22-6A-1 et seq., §22-8-1 et seq., §22-9-1 et seq., §22-10-1 et seq., and §22-21-1 et seq. of this code;

(5) Prepare report forms to be used by oil and gas inspectors or the supervising inspector in making their findings, orders, and notices upon inspections made in accordance with §22-6-1 et seq., §22-6A-1 et seq., §22-8-1 et seq., §22-9-1 et seq., §22-10-1 et seq., and §22-21-1 et seq. of this code;

(6) Employ a hearing officer and such clerks, stenographers, and other employees as may be necessary to carry out his or her duties and the purposes of the Office of Oil and Gas and fix their compensation;

(7) Hear and determine applications made by owners, well operators, and coal operators for the annulment or revision of orders made by oil and gas inspectors or the supervising inspector, and to make inspections, in accordance with the provisions of §22-6-1 et seq., §22-6A-1 et seq., §22-8-1 et seq., and §22-9-1 et seq. of this code;

(8) Cause a properly indexed permanent and public record to be kept of all inspections made by the secretary or by oil and gas inspectors or the supervising inspector;

(9) Conduct research and studies as the secretary shall deem necessary to aid in protecting the health and safety of persons employed within or at potential or existing oil or gas production fields within this state, to improve drilling and production methods, and to provide for the more efficient protection and preservation of oil and gas-bearing rock strata and property used in connection therewith;

(10) Collect a permit fee of $400 for each permit application filed other than an application for a deep well, horizontal wells regulated pursuant to §22-6A-1 et seq. of this code, or a coalbed methane well; and collect a permit fee of $650 for each permit application filed for a deep well: Provided, That no permit application fee is required when an application is submitted solely for the plugging or replugging of a well, or to modify an existing application for which the operator previously has submitted a permit fee under this section. All application fees required hereunder are in lieu of and not in addition to any fees imposed under §22-11-1 et seq. of this code relating to discharges of stormwater but are in addition to any other fees required by the provisions of §22-6-1 et seq. of this code: Provided, however, That upon a final determination by the United States Environmental Protection Agency regarding the scope of the exemption under Section 402(l)(2) of the federal Clean Water Act (33 U.S.C. 1342(l)(2)), which determination requires a "national pollutant discharge elimination system" permit for stormwater discharges from the oil and gas operations described therein, any permit fees for stormwater permits required under §22-11-1 et seq. of this code for such operations may not exceed $100;

(11) On or after July 1 of each year, collect from the responsible operator of the first 400 wells subject to §22-6-1 et seq., §22-6A-1 et seq. or §22-21-1 et seq. of this code that has not yet been plugged, and that produces more than an average, calculated by dividing the annual production by 365, of 250,000 cubic feet of gas per day or more as reported to the State Tax Commissioner in the previous reporting year, an annual oversight fee of $350 for each well;

(12) On or after July 1 of each year, collect from the responsible operator of the first 400 wells subject to §22-6-1 et seq., §22-6A-1 et seq. or §22-21-1 et seq. of this code that has not yet been plugged, and that produces an average, calculated by dividing the annual production by 365, of less than or equal to 250,000 cubic feet of gas but more than 60,000 cubic feet of gas per day as reported to the State Tax Commissioner in the previous reporting year, an annual oversight fee of $75 for each well;

(13) On or after July 1 of each year, collect from the responsible operator of the first 4,000 wells subject to §22-6-1 et seq., §22-6A-1 et seq. or §22-21-1 et seq. of this code that has not yet been plugged, and that produces an average, calculated by dividing the annual production by 365, of less than or equal to 60,000 cubic feet of gas but more than 10,000 cubic feet of gas per day as reported to the State Tax Commissioner in the previous reporting year, an annual oversight fee of $25 for each well; Provided, That responsible operators with 500 or fewer unplugged wells that produce an average, calculated by dividing the annual production by 365, of less than or equal to 60,000 cubic feet of gas but more than 10,000 cubic feet of gas per day are not subject to fees under this subdivision;

(14) Perform all other duties which are expressly imposed upon the secretary by the provisions of this chapter;

(15) Perform all duties as the permit issuing authority for the state in all matters pertaining to the exploration, development, production, storage, and recovery of this state's oil and gas;

(16) Adopt rules with respect to the issuance, denial, retention, suspension, or revocation of permits, authorizations, and requirements of this chapter, which rules shall assure that the rules, permits, and authorizations issued by the secretary are adequate to satisfy the purposes of §22-6-1 et seq., §22-6A-1 et seq., §22-7-1 et seq., §22-8-1 et seq., §22-9-1 et seq., §22-10-1 et seq., and §22-21-1 et seq. of this code particularly with respect to the consolidation of the various state and federal programs which place permitting requirements on the exploration, development, production, storage, and recovery of this state's oil and gas; and

(17) Perform such acts as may be necessary or appropriate to secure to this state the benefits of federal legislation establishing programs relating to the exploration, development, production, storage, and recovery of this state's oil and gas, which programs are assumable by the state.

(d) The secretary shall have authority to visit and inspect any well or well site and any other oil or gas facility in this state and may call for the assistance of any oil and gas inspector or inspectors or supervising inspector whenever such assistance is necessary in the inspection of any such well or well site or any other oil or gas facility. Similarly, all oil and gas inspectors and supervising inspectors shall have authority to visit and inspect any well or well site and any other oil or gas facility in this state. Such inspectors shall make all necessary inspections of oil and gas operations required by §22-6-1 et seq., §22-6A-1 et seq., §22-8-1 et seq., §22-9-1 et seq., §22-10-1 et seq., and §22-21-1 et seq. of this code; administer and enforce all oil and gas laws and rules; and perform other duties and services as may be prescribed by the secretary. The inspectors shall note and describe all violations of §22-6-1 et seq., §22-6A-1 et seq., §22-8-1 et seq., §22-9-1 et seq., §22-10-1 et seq., and §22-21-1 et seq. of this code and promptly report those violations to the secretary in writing, furnishing at the same time a copy of the report to the operator concerned. Any well operator, coal operator operating coal seams beneath the tract of land, or the coal seam owner or lessee, if any, if said owner or lessee is not yet operating said coal seams beneath said tract of land, may request the secretary to have an immediate inspection made. The operator or owner of every well or well site or any other oil or gas facility shall cooperate with the secretary, all oil and gas inspectors and the supervising inspector in making inspections or obtaining information.

(e) Subject to the provisions of §29B-1-1 et seq. of this code, all records of the office shall be open to the public.

§22-6-3. Findings and orders of inspectors concerning violations; determination of reasonable time for abatement; extensions of time for abatement; special inspections; notice of findings and orders.

(a) If an oil and gas inspector, upon making an inspection of a well or well site or any other oil or gas facility, finds that any provision of this article is being violated, the inspector shall also find whether or not an imminent danger to persons exists, or whether or not there exists an imminent danger that a fresh water source or supply will be contaminated or lost. If the inspector finds that such imminent danger exists, an order requiring the operator of such well or well site or other oil or gas facility to cease further operations until such imminent danger has been abated shall be issued by the inspector. If the inspector finds that no such imminent danger exists, the inspector shall determine what would be a reasonable period of time within which such violation should be totally abated. Such findings shall contain reference to the provisions of this article which the inspector finds are being violated, and a detailed description of the conditions which cause and constitute such violation.

(b) The period of time so found by such oil and gas inspector to be a reasonable period of time shall not exceed seven days. Such period may be extended by such inspector, or by any other oil and gas inspector duly authorized by the director, from time to time, for good cause, but not to exceed a total of thirty days, upon the making of a special inspection to ascertain whether or not such violation has been totally abated: Provided, That such thirty-day period may be extended beyond thirty days by such inspectors where abatement is shown to be incapable of accomplishment because of circumstances or conditions beyond the control of the well operator. The director shall cause a special inspection to be made: (A) Whenever an operator of a well or well site or any other oil or gas facility, prior to the expiration of any such period of time, requests the director to cause a special inspection to be made at such well or well site or any other oil or gas facility; and (B) upon expiration of such period of time as originally fixed or as extended, unless the director is satisfied that the violation has been abated. Upon making such special inspection, such oil and gas inspector shall determine whether or not such violation has been totally abated. If the inspector determines that such violation has not been totally abated, the inspector shall determine whether or not such period of time as originally fixed, or as so fixed and extended, should be extended. If the inspector determines that such period of time should be extended, the inspector shall determine what a reasonable extension would be. If the inspector determines that such violation has not been totally abated, and if such period of time as originally fixed, or as so fixed and extended, has then expired, and if the inspector also determines that such period of time should not be further extended, the inspector shall thereupon make an order requiring the operator of such well or well site or other oil or gas facility to cease further operations of such well, well site or facility, as the case may be. Such findings and order shall contain reference to the specific provisions of this article which are being violated.

(c) Notice of each finding and order made under this section shall promptly be given to the operator of the well or well site or other oil or gas facility to which it pertains by the person making such finding or order.

(d) No order shall be issued under the authority of this section which is not expressly authorized herein.

§22-6-4. Review of findings and orders by director; special inspection; annulment, revision, etc., of order; notice.

(a) Any well operator, complaining coal operator, owner or lessee, if any, aggrieved by findings or an order made by an oil or gas inspector pursuant to section three of this article, may within fifteen days apply to the director for annulment or revision of such order. Upon receipt of such application the director shall make a special inspection of the well, well site or other oil and gas facility affected by such order, or cause two duly authorized oil and gas inspectors, other than the oil and gas inspector who made such order or the supervising inspector and one duly authorized oil and gas inspector other than the oil and gas inspector who made such order, to make such inspection of such well, or well site or other oil or gas facility and to report thereon to them. Upon making such special inspection, or upon receiving the report of such special inspection, as the case may be, the director shall make an order which shall include the director's findings and shall annul, revise or affirm the order of the oil and gas inspector.

(b) The director shall cause notice of each finding and order made under this section to be given promptly to the operator of the well, well site or other oil or gas facility to which such findings and order pertain, and the complainant under section three, if any.

(c) At any time while an order made pursuant to section three of this article is in effect, the operator of the well, well site or other oil or gas facility affected by such order may apply to the director for annulment or revision of such order. The director shall thereupon proceed to act upon such application in the manner provided in this section.

(d) In view of the urgent need for prompt decision of matters submitted to the director under this article, all actions which the director, or oil and gas inspectors or the supervising inspector are required to take under this article, shall be taken as rapidly as practicable, consistent with adequate consideration of the issues involved.

§22-6-5. Requirements for findings, orders and notices; posting of findings and orders; judicial review of final orders of director.

(a) All findings and orders made pursuant to section three or four of this article, and all notices required to be given of the making of such findings and orders, shall be in writing. All such findings and orders shall be signed by the person making them, and all such notices shall be signed by the person charged with the duty of giving the notice. All such notices shall contain a copy of the findings and orders referred to therein.

(b) Notice of any finding or order required by section three or four of this article to be given to an operator shall be given by causing such notice, addressed to the operator of the well, well site or other oil and/or gas facility to which such finding or order pertains, to be delivered to such operator by causing a copy thereof to be sent by registered mail to the permanent address of such operator as filed with the division and by causing a copy thereof to be posted upon the drilling rig or other equipment at the well, well site or other oil and/or gas facility, as the case may be. The requirement of this article that a notice shall be "addressed to the operator of the well, well site or other oil and/or gas facility to which such finding or order pertains," shall not require that the name of the operator for whom it is intended shall be specifically set out in such address. Addressing such notice to "Operator of ___________________," specifying the well, well site or other oil and/or gas facility sufficiently to identify it, shall satisfy such requirement.

(c) Any well operator, complaining coal operator, owner or lessee, if any, adversely affected by a final order issued by the director under section four of this article shall be entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such judicial review with like effect as if the provisions of said section four were set forth in extenso in this section.

(d) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

(e) Legal counsel and services for the director in all appeal proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his or her assistants and in any circuit court by the prosecuting attorney of the county as well, all without additional compensation. The director, with written approval of the Attorney General, may employ special counsel to represent the director at any such appeal proceedings.

§22-6-6. Permit required for well work; permit fee; application; soil erosion control plan.

(a) It is unlawful for any person to commence any well work, including site preparation work which involves any disturbance of land, without first securing from the director a well work permit. An application may propose and a permit may approve two or more activities defined as well work.

(b) The application for a well work permit shall be accompanied by applicable bond as prescribed by section twelve, fourteen or twenty-three of this article, and the applicable plat required by section twelve or fourteen of this article.

(c) Every permit application filed under this section shall be verified and shall contain the following:

(1) The names and addresses of: (i) The well operator; (ii) the agent required to be designated under subsection (e) of this section; and (iii) every person whom the applicant must notify under any section of this article together with a certification and evidence that a copy of the application and all other required documentation has been delivered to all such persons;

(2) The name and address of every coal operator operating coal seams under the tract of land on which the well is or may be located, and the coal seam owner of record and lessee of record required to be given notice by section twelve, if any, if said owner or lessee is not yet operating said coal seams;

(3) The number of the well or such other identification as the director may require;

(4) The type of well;

(5) The well work for which a permit is requested;

(6) The approximate depth to which the well is to be drilled or deepened, or the actual depth if the well has been drilled;

(7) Any permit application fee required by law;

(8) If the proposed well work will require casing or tubing to be set, the entire casing program for the well, including the size of each string of pipe, the starting point and depth to which each string is to be set, and the extent to which each such string is to be cemented;

(9) If the proposed well work is to convert an oil well or a combination well or to drill a new well for the purpose of introducing pressure for the recovery of oil as provided in section twenty-five of this article, specifications in accordance with the data requirements of section fourteen of this article;

(10) If the proposed well work is to plug or replug the well: (i) Specifications in accordance with the data requirements of section twenty-three of this article; (ii) a copy of all logs in the operator's possession as the director may require; and (iii) a work order showing in detail the proposed manner of plugging or unplugging the well, in order that a representative of the director and any interested persons may be present when the work is done. In the event of an application to drill, redrill or deepen a well, if the well work is unsuccessful so that the well must be plugged and abandoned, and if the well is one on which the well work has been continuously progressing pursuant to a permit, the operator may proceed to plug the well as soon as the operator has obtained the verbal permission of the director or the director's designated representative to plug and abandon the well, except that the operator shall make reasonable effort to notify as soon as practicable the surface owner and the coal owner, if any, of the land at the well location, and shall also timely file the plugging affidavit required by section twenty-three of this article;

(11) If the proposed well work is to stimulate an oil or gas well, specifications in accordance with the data requirements of section thirteen of this article;

(12) The erosion and sediment control plan required under subsection (d) of this section for applications for permits to drill; and

(13) Any other relevant information which the director may require by rule.

(d) An erosion and sediment control plan shall accompany each application for a well work permit except for a well work permit to plug or replug any well. Such plan shall contain methods of stabilization and drainage, including a map of the project area indicating the amount of acreage disturbed. The erosion and sediment control plan shall meet the minimum requirements of the West Virginia erosion and sediment control manual as adopted and from time to time amended by the division, in consultation with the several soil conservation districts pursuant to the control program established in this state through section 208 of the federal Water Pollution Control Act Amendments of 1972 (33 U.S.C.1288). The erosion and sediment control plan shall become part of the terms and conditions of a well work permit, except for a well work permit to plug or replug any well, which is issued and the provisions of the plan shall be carried out where applicable in the operation. The erosion and sediment control plan shall set out the proposed method of reclamation which shall comply with the requirements of section thirty of this article.

(e) The well operator named in such application shall designate the name and address of an agent for such operator who shall be the attorney-in-fact for the operator and who shall be a resident of the State of West Virginia upon whom notices, orders or other communications issued pursuant to this article or article eleven, chapter twenty-two, may be served, and upon whom process may be served. Every well operator required to designate an agent under this section shall within five days after the termination of such designation notify the director of such termination and designate a new agent.

(f) The well owner or operator shall install the permit number as issued by the director in a legible and permanent manner to the well upon completion of any permitted work. The dimensions, specifications and manner of installation shall be in accordance with the rules of the director.

(g) The director may waive the requirements of this section and sections nine, ten and eleven of this article in any emergency situation, if the director deems such action necessary. In such case the director may issue an emergency permit which would be effective for not more than thirty days, but which would be subject to reissuance by the director.

(h) The director shall deny the issuance of a permit if the director determines that the applicant has committed a substantial violation of a previously issued permit, including the erosion and sediment control plan, or a substantial violation of one or more of the rules promulgated hereunder, and has failed to abate or seek review of the violation within the time prescribed by the director pursuant to the provisions of sections three and four of this article and the rules promulgated hereunder, which time may not be unreasonable: Provided, That in the event that the director does find that a substantial violation has occurred and that the operator has failed to abate or seek review of the violation in the time prescribed, the director may suspend the permit on which said violation exists, after which suspension the operator shall forthwith cease all well work being conducted under the permit: Provided, however, That the director may reinstate the permit without further notice, at which time the well work may be continued. The director shall make written findings of any such determination and may enforce the same in the circuit courts of this state and the operator may appeal such suspension pursuant to the provisions of section forty of this article. The director shall make a written finding of any such determination.

(i) Any person who violates any provision of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $5,000, or be imprisoned in the county jail not more than twelve months, or both fined and imprisoned.

§22-6-7. Water pollution control permits; powers and duties of the director; penalties.

(a) In addition to a permit for well work, the director, after public notice and an opportunity for public hearings, may either issue a separate permit, general permit or a permit consolidated with the well work permit for the discharge or disposition of any pollutant or combination of pollutants into waters of this state upon condition that such discharge or disposition meets or will meet all applicable state and federal water quality standards and effluent limitations and all other requirements of the director.

(b) It shall be unlawful for any person conducting activities which are subject to the requirements of this article, unless that person holds a water pollution control permit therefor from the director, which is in full force and effect to:

(1) Allow pollutants or the effluent therefrom, produced by or emanating from any point source, to flow into the water of this state;

(2) Make, cause or permit to be made any outlet, or substantially enlarge or add to the load of any existing outlet, for the discharge of pollutants or the effluent therefrom, into the waters of this state;

(3) Acquire, construct, install, modify or operate a disposal system or part thereof for the direct or indirect discharge or deposit of treated or untreated pollutants or the effluent therefrom, into the waters of this state, or any extension to or addition to such disposal system;

(4) Increase in volume or concentration any pollutants in excess of the discharges or disposition specified or permitted under any existing permit;

(5) Extend, modify or add to any point source, the operation of which would cause an increase in the volume or concentration of any pollutants discharging or flowing into the waters of the state;

(6) Operate any disposal well for the injection or reinjection underground of any pollutant, including, but not limited to, liquids or gasses, or convert any well into such a disposal well or plug or abandon any such disposal well.

(c) Notwithstanding any provision of this article or articles seven, eight, nine or ten of this chapter to the contrary, the director shall have the same powers and duties relating to inspection and enforcement as those granted under article eleven, chapter twenty-two of this code in connection with the issuance of any water pollution control permit or any person required to have such permit.

(d) Any person who violates any provision of this section, any order issued under this section or any permit issued pursuant to this section or any rule of the director relating to water pollution or who willfully or negligently violates any provision of this section or any permit issued pursuant to this section or any rule or order of the director relating to water pollution or who fails or refuses to apply for and obtain a permit or who intentionally misrepresents any material fact in an application, record, report, plan or other document files or required to be maintained under this section shall be subject to the same penalties for such violations as are provided for in sections twenty-two and twenty-four, article eleven, chapter twenty-two of this code: Provided, That the provisions of section twenty-six, article eleven, chapter twenty-two of this code relating to exceptions to criminal liability shall also apply.

All applications for injunction filed pursuant to section twenty-two, article eleven, chapter twenty-two of the code shall take priority on the docket of the circuit court in which pending, and shall take precedence over all other civil cases.

(e) Any water pollution control permit issued pursuant to this section or any order issued in connection with such permit for the purpose of implementing the "national pollutant discharge elimination system" established under the federal Clean Water Act shall be issued by the chief of the office of water resources of the division in consultation with the chief of the office of oil and gas of the division and shall be appealable to the environmental quality board pursuant to the provisions of section twenty-five, article eleven, chapter twenty-two and section seven, article one, chapter twenty-two-b of this code.

§22-6-8. Permits not to be on flat well royalty leases; legislative findings and declarations; permit requirements.

(a) The Legislature hereby finds and declares:

(1) That a significant portion of the oil and gas underlying this state is subject to development pursuant to leases or other continuing contractual agreements wherein the owners of such oil and gas are paid upon a royalty or rental basis known in the industry as the annual flat well royalty basis, in which the royalty is based solely on the existence of a producing well, and thus is not inherently related to the volume of the oil and gas produced or marketed;

(2) That continued exploitation of the natural resources of this state in exchange for such wholly inadequate compensation is unfair, oppressive, works an unjust hardship on the owners of the oil and gas in place, and unreasonably deprives the economy of the State of West Virginia of the just benefit of the natural wealth of this state;

(3) That a great portion, if not all, of such leases or other continuing contracts based upon or calling for an annual flat well royalty, have been in existence for a great many years and were entered into at a time when the techniques by which oil and gas are currently extracted, produced or marketed, were not known or contemplated by the parties, nor was it contemplated by the parties that oil and gas would be recovered or extracted or produced or marketed from the depths and horizons currently being developed by the well operators;

(4) That while being fully cognizant that the provisions of Section 10, Article I of the United States Constitution and of section 4, article III of the Constitution of West Virginia, proscribe the enactment of any law impairing the obligation of a contract, the Legislature further finds that it is a valid exercise of the police powers of this state and in the interest of the State of West Virginia and in furtherance of the welfare of its citizens, to discourage as far as constitutionally possible the production and marketing of oil and gas located in this state under the type of leases or other continuing contracts described above.

(b) In the light of the foregoing findings, the Legislature hereby declares that it is the policy of this state, to the extent possible, to prevent the extraction, production or marketing of oil or gas under a lease or leases or other continuing contract or contracts providing a flat well royalty or any similar provisions for compensation to the owner of the oil and gas in place, which is not inherently related to the volume of oil or gas produced or marketed, and toward these ends, the Legislature further declares that it is the obligation of this state to prohibit the issuance of any permit required by it for the development of oil or gas where the right to develop, extract, produce, or market the same is based upon such leases or other continuing contractual agreements.

(c) In addition to any requirements contained in this article with respect to the issuance of any permit required for the drilling, redrilling, deepening, fracturing, stimulating, pressuring, converting, combining, or physically changing to allow the migration of fluid from one formation to another, no such permit shall be hereafter issued unless the lease or leases or other continuing contract or contracts by which the right to extract, produce or market the oil or gas is filed with the application for such permit. In lieu of filing the lease or leases or other continuing contract or contracts, the applicant for a permit described herein may file the following:

(1) A brief description of the tract of land including the district and county wherein the tract is located;

(2) The identification of all parties to all leases or other continuing contractual agreements by which the right to extract, produce or market the oil or gas is claimed;

(3) The book and page number wherein each such lease or contract by which the right to extract, produce or market the oil or gas is recorded; and

(4) A brief description of the royalty provisions of each such lease or contract.

(d) Unless the provisions of §22-6-8(e) of this code are met, no such permit shall be hereafter issued for the drilling of a new oil or gas well, or for the redrilling, deepening, fracturing, stimulating, pressuring, converting, combining, or physically changing to allow the migration of fluid from one formation to another, of an existing oil or gas production well, where or if the right to extract, produce, or market the oil or gas is based upon a lease or leases or other continuing contract or contracts providing for flat well royalty or any similar provision for compensation to the owner of the oil or gas in place which is not inherently related to the volume of oil and gas so extracted, produced, and marketed.

(e) To avoid the permit prohibition of §22-6-8(d) of this code, the applicant may file with such application an affidavit which certifies that the affiant is authorized by the owner of the working interest in the well to state that it shall tender to the owner of the oil or gas in place not less than one eighth of the gross proceeds, free from any deductions for post-production expenses, received at the first point of sale to an unaffiliated third-party purchaser in an arm’s length transaction for the oil or gas so extracted, produced or marketed before deducting the amount to be paid to or set aside for the owner of the oil or gas in place, on all such oil or gas to be extracted, produced or marketed from the well. If such affidavit be filed with such application, then such application for permit shall be treated as if such lease or leases or other continuing contract or contracts comply with the provisions of this section.

(f) The owner of the oil or gas in place shall have a cause of action to enforce the owner’s rights established by this section.

(g) The provisions of this section shall not affect or apply to any lease or leases or other continuing contract or contracts for the underground storage of gas or any well utilized in connection therewith or otherwise subject to the provisions of §22-9-1 et seq. of this code.

(h) The director shall enforce this requirement irrespective of when the lease or other continuing contract was executed.

(i) The provisions of this section shall not adversely affect any rights to free gas.

§22-6-9. Notice to property owners.

(a) No later than the filing date of the application, the applicant for a permit for any well work shall deliver by personal service or by certified mail, return receipt requested, copies of the application, well plat and erosion and sediment control plan required by section six of this article to each of the following persons:

(1) The owners of record of the surface of the tract on which the well is, or is to be located; and

(2) The owners of record of the surface tract or tracts overlying the oil and gas leasehold being developed by the proposed well work, if such surface tract is to be utilized for roads or other land disturbance as described in the erosion and sediment control plan submitted pursuant to section six of this article.

(b) If more than three tenants in common or other coowners of interests described in subsection (a) of this section hold interests in such lands, the applicant may serve the documents required upon the person described in the records of the sheriff required to be maintained pursuant to section eight, article one, chapter eleven-a of this code, or publish in the county in which the well is located or to be located a Class II legal advertisement as described in section two, article three, chapter fifty-nine of this code, containing such notice and information as the director shall prescribe by rule, with the first publication date being at least ten days prior to the filing of the permit application: Provided, That all owners occupying the tracts where the well work is, or is proposed to be located at the filing date of the permit application shall receive actual service of the documents required by subsection (a) of this section.

(c) Materials served upon persons described in subsections (a) and (b) of this section shall contain a statement of the methods and time limits for filing comments, who may file comments and the name and address of the director for the purpose of filing comments and obtaining additional information and a statement that such persons may request, at the time of submitting comments, notice of the permit decision and a list of persons qualified to test water as provided in this section.

(d) Any person entitled to submit comments shall also be entitled to receive a copy of the permit as issued or a copy of the order denying the permit if such person requests the receipt thereof as a part of the comments concerning said permit application.

(e) Persons entitled to notice may contact the district office of the division to ascertain the names and location of water testing laboratories in the area capable and qualified to test water supplies in accordance with standard accepted methods. In compiling such list of names the division shall consult with the state bureau of public health and local health departments.

§22-6-10. Procedure for filing comments; certification of notice.

(a) All persons described in subsections (a) and (b), section nine of this article may file comments with the director as to the location or construction of the applicant's proposed well work within fifteen days after the application is filed with the director.

(b) Prior to the issuance of any permit for well work, the applicant shall certify to the director that the requirements of section nine of this article have been completed by the applicant. Such certification may be by affidavit of personal service or the return receipt card, or other postal receipt for certified mailing.

§22-6-11. Review of application; issuance of permit in the absence of objections; copy of permits to county assessor.

The director shall review each application for a well work permit and shall determine whether or not a permit shall be issued.

No permit shall be issued less than fifteen days after the filing date of the application for any well work except plugging or replugging; and no permit for plugging or replugging shall be issued less than five days after the filing date of the application except a permit for plugging or replugging a dry hole: Provided, That if the applicant certifies that all persons entitled to notice of the application under the provisions of this article have been served in person or by certified mail, return receipt requested, with a copy of the well work application, including the erosion and sediment control plan, if required, and the plat required by section six of this article, and further files written statements of no objection by all such persons, the director may issue the well work permit at any time.

The director may cause such inspections to be made of the proposed well work location as to assure adequate review of the application. The permit shall not be issued, or shall be conditioned including conditions with respect to the location of the well and access roads prior to issuance if the director determines that:

(1) The proposed well work will constitute a hazard to the safety of persons; or

(2) The plan for soil erosion and sediment control is not adequate or effective; or

(3) Damage would occur to publicly owned lands or resources; or

(4) The proposed well work fails to protect fresh water sources or supplies.

The director shall promptly review all comments filed. If after review of the application and all comments received, the application for a well work permit is approved, and no timely objection or comment has been filed with the director or made by the director under the provisions of section fifteen, sixteen or seventeen of this article, the permit shall be issued, with conditions, if any. Nothing in this section shall be construed to supersede the provisions of sections six, twelve, thirteen, fourteen, fifteen, sixteen and seventeen of this article.

The director shall mail a copy of the permit as issued or a copy of the order denying a permit to any person who submitted comments to the director concerning said permit and requested such copy.

Upon the issuance of any permit pursuant to the provisions of this article, the director shall transmit a copy of such permit to the office of the assessor for the county in which the well is located.

§22-6-12. Plats prerequisite to drilling or fracturing wells; preparation and contents; notice and information furnished to coal operators, owners or lessees; issuance of permits; performance bonds or securities in lieu thereof; bond forfeiture.

(a) Before drilling for oil or gas, or before fracturing or stimulating a well on any tract of land, the well operator shall have a plat prepared by a licensed land surveyor or registered engineer showing the district and county in which the tract of land is located, the name and acreage of the same, the names of the owners of adjacent tracts, the proposed or actual location of the well determined by survey, the courses and distances of such location from two permanent points or landmarks on said tract and the number to be given the well. In the event the tract of land on which the said well proposed to be drilled or fractured is located is known to be underlain by one or more coal seams, copies of the plat shall be forwarded by registered or certified mail to each and every coal operator operating said coal seams beneath said tract of land, who has mapped the same and filed such maps with the office of miners' health, safety and training in accordance with chapter twenty-two-a of this code and the coal seam owner of record and lessee of record, if any, if said owner or lessee has recorded the declaration provided in section thirty-six of this article, and if said owner or lessee is not yet operating said coal seams beneath said tract of land. With each of such plats there shall be enclosed a notice (form for which shall be furnished on request by the secretary) addressed to the secretary and to each such coal operator, owner and lessee, if any, at their respective addresses, informing them that such plat and notice are being mailed to them respectively by registered or certified mail, pursuant to the requirements of this article.

(b) If no objections are made, or are found by the secretary, to such proposed location or proposed fracturing within fifteen days from receipt of such plat and notice by the secretary, the same shall be filed and become a permanent record of such location or fracturing subject to inspection at any time by any interested person, and the secretary may forthwith issue to the well operator a permit reciting the filing of such plat, that no objections have been made by the coal operators, owners and lessees, if any, or found thereto by the secretary, and authorizing the well operator to drill at such location, or to fracture the well. Unless the secretary has objections to such proposed location or proposed fracturing or stimulating, such permit may be issued prior to the expiration of such fifteen-day period upon the obtaining by the well operator of the consent in writing of the coal operator or operators, owners and lessees, if any, to whom copies of the plat and notice shall have been mailed as herein required, and upon presentation of such written consent to the secretary. The notice above provided for may be given to the coal operator by delivering or mailing it by registered or certified mail as above to any agent or superintendent in actual charge of mines.

(c) A permit to drill, or to fracture or stimulate an oil or gas well, shall not be issued unless the application therefor is accompanied by a bond as provided in section twenty-six of this article.

§22-6-13. Notice to coal operators, owners or lessees and director of intention to fracture certain other wells; contents of such notice; bond; permit required.

Before fracturing any well the well operator shall, by registered or certified mail, forward a notice of intention to fracture such well to the director and to each and every coal operator operating coal seams beneath said tract of land, who has mapped the same and filed such maps with the office of miners' health, safety and training in accordance with chapter twenty-two-a of this code, and the coal seam owner and lessee, if any, if said owner of record or lessee of record has recorded the declaration provided in section thirty-six of this article, and if said owner or lessee is not yet operating said coal seams beneath said tract of land.

The notice shall be addressed to the director and to each such coal operator at their respective addresses, shall contain the number of the drilling permit for such well and such other information as may be required by the director to enable the division and the coal operators to locate and identify such well and shall inform them that such notice is being mailed to them, respectively, by registered or certified mail, pursuant to the requirements of this article. The form for such notice of intention shall be furnished on request by the director.

If no objections are made, or are found by the director to such proposed fracturing within fifteen days from receipt of such notice by the director, the same shall be filed and become a permanent record of such fracturing, subject to inspection at any time by any interested person, and the director shall forthwith issue to the well operator a permit reciting the filing of such notice, that no objections have been made by the coal operators, or found thereto by the director, and authorizing the well operator to fracture such well. Unless the director has objections to such proposed fracturing, such permit shall be issued prior to the expiration of such fifteen-day period upon the obtaining by the well operator of the consent in writing of the coal operator or operators, owners or lessees, if any, to whom notice of intention to fracture shall have been mailed as herein required, and upon presentation of such written consent to the director. The notice above provided for may be given to the coal operator by delivering or mailing it by registered or certified mail as above to any agent or superintendent in actual charge of mines.

§22-6-14. Plats prerequisite to introducing liquids or waste into wells; preparation and contents; notice and information furnished to coal operators, owners or lessees and director; issuance of permits; performance bonds or security in lieu thereof.

(a) Before drilling a well for the introduction of liquids for the purposes provided for in section twenty-five of this article or for the introduction of liquids for the disposal of pollutants or the effluent therefrom on any tract of land, or before converting an existing well for such purposes, the well operator shall have a plat prepared by a registered engineer or licensed land surveyor showing the district and county in which the tract of land is located, the name and acreage of the same, the names of the owners of all adjacent tracts, the proposed or actual location of the well or wells determined by a survey, the courses and distances of such location from two permanent points of land marked on said tract and the number to be given to the well, and shall forward by registered or certified mail the original and one copy of the plat to the director. In addition, the well operator shall provide the following information on the plat or by way of attachment thereto to the director in the manner and form prescribed by the director's rules: (1) The location of all wells, abandoned or otherwise located within the area to be affected; (2) where available, the casing records of all such wells; (3) where available, the drilling log of all such wells; (4) the maximum pressure to be introduced; (5) the geological formation into which such liquid or pressure is to be introduced; (6) a general description of the liquids to be introduced; (7) the location of all water-bearing horizons above and below the geological formation into which such pressure, liquid or waste is to be introduced; and (8) such other information as the director by rule may require.

(b) In the event the tract of land on which said well proposed to be drilled or converted for the purposes provided for in this section is located is known to be underlaid with coal seams, copies of the plat and all information required by this section shall be forwarded by the operator by registered or certified mail to each and every coal operator operating coal seams beneath said tract of land, who has mapped the same and filed such maps with the office of miners' health, safety and training in accordance with chapter twenty-two-a of this code, and the coal seam owner of record and lessee of record, if any, if said owner or lessee has recorded the declaration provided in section thirty-six of this article, and if said owner or lessee is not yet operating said seams beneath said tract of land. With each of such plats, there shall be enclosed a notice (form for which shall be furnished on request by the director) addressed to the director and to each such coal operator, owner or lessee, if any, at their respective addresses, informing them that such plat and notice are being mailed to them, respectively, by registered or certified mail, pursuant to the requirements of this section.

(c) If no objections are made by any such coal operator, owner or lessee, or the director, such proposed drilling or converting of the well or wells for the purposes provided for in this section within thirty days from the receipt of such plat and notice by the director, the same shall be filed and become a permanent record of such location or well, subject to inspection at any time by any interested person, and the director may after public notice and opportunity to comment, issue such permit authorizing the well operator to drill at such location or convert such existing well or wells for the purposes provided for in this section. The notice above provided for may be given to the coal operator by delivering or mailing it by registered or certified mail as above to any agent or superintendent in actual charge of the mines.

(d) A permit to drill a well or wells or convert an existing well or wells for the purposes provided for in this section shall not be issued until all of the bonding provisions required by the provisions of section twelve of this article have been fully complied with and all such bonding provisions shall apply to all wells drilled or converted for the purposes provided for in this section as if such wells had been drilled for the purposes provided for in section twelve of this article, except that such bonds shall be conditioned upon full compliance with all laws and rules relating to the drilling of a well or the converting of an existing well for the purposes provided for in said section twenty-five, or introducing of liquids for the disposal of pollutants including the redrilling, deepening, casing, plugging or abandonment of all such wells.

§22-6-15. Objections to proposed drilling of deep wells and oil wells; objections to fracturing; notices and hearings; agreed locations or conditions; indication of changes on plats, etc.; issuance of permits.

(a) When a proposed deep well drilling site or oil well drilling site or any site is above a seam or seams of coal, then the coal operator operating said coal seams beneath the tract of land, or the coal seam owner or lessee, if any, if said owner or lessee is not yet operating said coal seams, may within fifteen days from the receipt by the director of the plat and notice required by section twelve of this article, or within fifteen days from the receipt by the director of notice required by section thirteen of this article, file objections in writing (forms for which will be furnished by the director on request) to such proposed drilling or fracturing with the director, setting out therein as definitely as is reasonably possible the ground or grounds on which such objections are based.

If any objection is filed, or if any objection is made by the director, the director shall notify the well operator of the character of the objections and by whom made and fix a time and place, not less than fifteen days from the end of said fifteen-day period, at which such objections will be considered of which time and place the well operator and all objecting coal operators, owners or lessees, if any, shall be given at least ten days' written notice by the director, by registered or certified mail, and summoned to appear. At the time and place so fixed the well operator and the objecting coal operators, owners or lessees, if any, or such of them as are present or represented, shall proceed to consider the objections. In the case of proposed drilling, such parties present or represented may agree upon either the location as made or so moved as to satisfy all objections and meet the approval of the director, and any change in the original location so agreed upon and approved by the director shall be indicated on said plat on file with the director, and the distance and direction of the new location from the original location shall be shown, and as so altered, the plat shall be filed and become a permanent record, and in the case of proposed fracturing, such parties present or represented may agree upon conditions under which the well is to be fractured which will protect life and property and which will satisfy all objections and meet the approval of the director, at which time the plat and notice required by section twelve or the notice required by section thirteen, as the case may be, shall be filed and become a permanent record. Whereupon the director shall forthwith issue to the well operator a drilling or fracturing permit, as the case may be, reciting the filing of the plat and notice required by said section twelve, or the notice required by said section thirteen, as the case may be, that at a hearing duly held a location as shown on the plat or the conditions under which the fracturing is to take place for the protection of life and property were agreed upon and approved, and that the well operator is authorized to drill at such location or to fracture at the site shown on such plat, or to fracture the well identified in the notice required by section thirteen, as the case may be.

(b) In the event the well operator and the objecting coal operators, owners or lessees, if any, or such as are present or represented at such hearing are unable to agree upon a drilling location, or upon a drilling location that meets the approval of the director, then the director shall proceed to hear the evidence and testimony in accordance with sections one and two, article five, chapter twenty-nine-a of this code, except where such provisions are inconsistent with the article. The director shall take into consideration in arriving at his decision:

(1) Whether the drilling location is above or in close proximity to any mine opening or shaft, entry, travelway, airway, haulageway, drainageway or passageway, or to any proposed extension thereof in any operated or abandoned or operating coal mine or coal mines already surveyed and platted, but not yet being operated;

(2) Whether the proposed drilling can reasonably be done through an existing or planned pillar of coal, or in close proximity to an existing well or such pillar of coal, taking into consideration the surface topography;

(3) Whether a well can be drilled safely, taking into consideration the dangers from creeps, squeezes or other disturbances due to the extraction of coal; and

(4) The extent to which the proposed drilling location unreasonably interferes with the safe recovery of coal, oil and gas.

At the close of the hearing or within ten days thereafter the director shall issue an order:

(1) Refusing to issue a permit;

(2) Issuing a permit for the proposed drilling location; or

(3) Issuing a permit for a drilling location different from that requested by the well operator.

The order shall state with particularity the reasons for the director's order and shall be mailed by registered or certified mail to the parties present or represented at such hearing. If the director has ruled that a permit will be issued, the director shall issue a permit effective ten days after such order is mailed, except that for good cause shown, the director may stay the issuance of a permit for a period not to exceed thirty days.

If a permit is issued, the director shall indicate the new drilling location on the plat on file and shall number and keep an index of and docket each plat and notice received by mail as provided in section twelve of this article, and each notice mailed as provided in section thirteen of this article, entering in such docket the name of the well operator, and the names and addresses of all persons notified, the dates of hearings and all actions taken by the director. The director shall also prepare a record of the proceedings, which record shall include all applications, plats and other documents filed with the director, all notices given and proof of service thereof, all orders issued, all permits issued and a transcript of the hearing. The record prepared by the director shall be open to inspection by the public.

(c) In the event the well operator and the objecting coal operators, owners or lessees, if any, or such as are present or represented at such hearing, are unable to agree upon the conditions under which the well is to be fractured as to protect life and property, or upon conditions of fracturing that meet with the approval of the director, then the director shall proceed to hear the evidence and testimony in accordance with sections one and two, article five, chapter twenty-nine-a of this code, except where such provisions are inconsistent with this article.

The director shall take into consideration whether the well can be fractured safely, taking into consideration the dangers from creeps, squeezes or other disturbances.

At the close of the hearing, or within ten days thereafter, the director shall issue an order stating the conditions under which the well is to be fractured, provided the well can be fractured safely, taking into consideration the dangers from creeps, squeezes or other disturbances. If such fracturing cannot be done safely, the director shall issue an order stating with particularity the reasons for refusing to issue a permit.

The order shall state with particularity the reasons for the director's order and shall be mailed by registered or certified mail to the parties present or represented at such hearing. If the director has ruled that a permit will be issued, the director shall issue a permit effective ten days after such order is mailed, except that for good cause shown, the director may stay the issuance of a permit for a period not to exceed thirty days.

If a permit is issued, the director shall indicate the well to be fractured on the plat on file and shall number and keep an index of and docket each plat and notice received by mail as provided in section twelve of this article, and each notice received by mail as provided in section thirteen of this article, entering in such docket the name of the well operator, the names and addresses of all persons notified, the dates of hearings and all actions taken by the director. The director shall also prepare a record of the proceedings, which record shall include all applications, plats and other documents filed with the director, all notices given and proof of service thereof, all orders issued, all permits issued and a transcript of the hearing. The record prepared by the director shall be open to inspection by the public.

§22-6-16. Objections to proposed drilling or converting for introducing liquids or waste into wells; notices and hearings; agreed location or conditions; indication of changes on plats, etc.; issuance of permits; docket of proceeding.

(a) When a well is proposed to be drilled or converted for the purposes provided for in section fourteen of this article, and is above a seam or seams of coal, then the coal operator operating said coal seams beneath the tract of land, or the coal seam owner or lessee, if any, if said owner or lessee is not yet operating said coal seams, may within fifteen days from the receipt by the director of the plat and notice required by section fourteen of this article, file objections in writing (forms for which will be furnished by the director on request) to such proposed drilling or conversion.

(b) In any case wherein a well proposed to be drilled or converted for the purposes provided for in section fourteen of this article shall, in the opinion of the chief of the office of water resources, affect detrimentally the reasonable standards of purity and quality of the waters of the state, such chief shall, within the time period established by the director for the receipt of public comment on such proposed drilling conversion, file with the director such objections in writing to such proposed drilling or conversion, setting out therein as definitely as is reasonably possible the ground or grounds upon which such objections are based and indicating the conditions, consistent with the provisions of this article and the rules promulgated thereunder, as may be necessary for the protection of the reasonable standards of the purity and quality of such waters under which such proposed drilling or conversion may be completed to overcome such objections, if any.

(c) If any objection or objections are so filed, or are made by the director, the director shall notify the well operator of the character of the objections and by whom made and fix a time and place, not less than thirty days from the end of said thirty-day period, at which such objections will be considered, of which time and place the well operator and all objecting coal operators, the owners or lessees, if any, or such chief, shall be given at least ten days' written notice by the director by registered or certified mail, and summoned to appear. At the time and place so fixed the well operator and the objecting coal operators, owners or lessees, if any, or such of them as are present or represented, or such chief, shall proceed to consider the objections. In the case of proposed drilling or converting of a well for the purposes provided for in section fourteen of this article, such parties present or represented may agree upon either the location as made or so moved as to satisfy all objections and meet the approval of the director, and any change in the original location so agreed upon and approved by the director shall be indicated on said plat on file with the director, and the distance and direction of the new location from the original location shall be shown, and, as so altered, the plat shall be filed and become a permanent record. In the case of proposed conversion, such parties present or represented may agree upon conditions under which the conversion is to take place for the protection of life and property or for protection of reasonable standards of purity and quality of the waters of the state. At which time the plat and notice required by section fourteen shall be filed and become a permanent record. Whereupon the director may issue to the well operator a permit to drill or convert, as the case may be, reciting the filing of the plat and notice required by said section fourteen that at a hearing duly held a location as shown on the plat or the conditions under which the conversion is to take place for the protection of life and property and reasonable standards of purity and quality of the waters of the state where agreed upon and approved, and that the well operator is authorized to drill at such location or to convert at the site shown on such plat, as the case may be.

(d)(1) In the case the well operator and the objecting coal operators, owners or lessees, if any, and such chief, or such as are present or represented at such hearing are unable to agree upon a drilling location, or upon a drilling location that meets the approval of the director, then the director shall proceed to hear the evidence and testimony in accordance with sections one and two, article five, chapter twenty-nine-a of this code, except where such provisions are inconsistent with this article. The director shall take into consideration upon decision:

(A) Whether the drilling location is above or in close proximity to any mine opening or shaft, entry, traveling, air haulage, drainage or passageway, or to any proposed extension thereof, in any operated or abandoned or operating coal mine, or coal mine already surveyed and platted, but not yet being operated;

(B) Whether the proposed drilling can reasonably be done through an existing or planned pillar of coal, or in close proximity to an existing well or such pillar of coal, taking into consideration the surface topography;

(C) Whether a well can be drilled safely, taking into consideration the dangers from creeps, squeezes or other disturbances, due to the extraction of coal; and

(D) The extent to which the proposed drilling location unreasonably interferes with the safe recovery of coal, oil and gas.

(2) At the close of the hearing or within ten days thereafter the director shall issue an order:

(A) Refusing to issue a permit;

(B) Issuing a permit for the proposed drilling location; or

(C) Issuing a permit for a drilling location different than that requested by the well operator.

The order shall state with particularity the reasons for the director's order and shall be mailed by registered or certified mail to the parties present or represented at such hearing. If the director has ruled that a permit will be issued, the director shall issue a permit effective ten days after such order is mailed: Except that for good cause shown, the director may stay the issuance of a permit for a period not to exceed thirty days.

(3) If a permit is issued, the director shall indicate the new drilling location on the plat on file with the director and shall number and keep an index of and docket each plat and notice mailed to the director as provided in section twelve of this article, and each notice mailed to the director as provided in section thirteen of this article, entering in such docket the name of the well operator, and the names and addresses of all persons notified, the dates of hearings and all actions taken by the director, permits issued or refused, the papers filed and a transcript of the hearing. This shall constitute a record of the proceedings before the director and shall be open to inspection by the public.

(e)(1) In the case, the well operator and the objecting coal operators, owners or lessees, if any, and such chief, or such as are present or represented at such hearing, are unable to agree upon the conditions under which the well is to be converted as to protect life and property, and the reasonable standards of purity and quality of the waters of the state, or upon conditions of converting that meet with the approval of the director, then the director shall proceed to hear the evidence and testimony in accordance with sections one and two, article five, chapter twenty-nine-a of this code, except where such provisions are inconsistent with this article. The director shall take into consideration upon decision:

(A) Whether the well can be converted safely, taking into consideration the dangers from creeps, squeezes or other disturbances;

(B) Whether the well can be converted, taking into consideration the reasonable standards of the purity and quality of the waters of the state.

(2) At the close of the hearing, or within ten days thereafter, the director shall issue an order stating the conditions under which the conversion is to take place, providing the well can be converted safely, taking into consideration the dangers from creeps, squeezes or other disturbances and the reasonable standards of purity and quality of the waters of this state. If such converting cannot be done safely, or if the reasonable standards of purity and quality of such waters will be endangered, the director shall issue an order stating with particularity the reasons for refusing to issue a permit.

(3) The order shall state with particularity the reasons for the director's order and shall be mailed by registered or certified mail to the parties present or represented at such hearing. If the director has ruled that a permit will be issued, such permit shall become effective ten days after the division has mailed such order: Except for good cause shown, the director may stay the issuance of a permit for a period not to exceed thirty days.

(4) If a permit is issued, the director shall indicate the well to be converted on the plat on file with the director, and shall number and keep an index of and docket each plat and notice mailed to the director as provided in section fourteen of this article, entering in such docket the name of the well operator, and the names and addresses of all persons notified, the dates of hearings and all actions taken by the director, permits issued or refused, the papers filed and a transcript of the hearings. This shall constitute a record of the proceedings before the director and shall be open to inspection by the public.

§22-6-17. Objections to proposed drilling of shallow gas wells; notice to chair of review board; indication of changes on plats; issuance of permits.

When a proposed shallow well drilling site is above a seam or seams of coal, then the owner of any such coal seam may, within fifteen days from the receipt by the director of the plat and notice required by section twelve of this article, file objections in writing (forms for which will be furnished by the director on request) to such proposed drilling with the director, setting out therein as definitely as is reasonably possible the ground or grounds on which such objections are based.

If any such objection is filed, or if any objection is made by the director, the director shall forthwith mail, by registered or certified mail, to the chair of the review board, a notice that an objection to the proposed drilling or deepening of a shallow well has been filed with or made by the director, and shall enclose in such notice a copy of all objections and of the application and plat filed with the director in accordance with the provisions of section twelve of this article.

Thereafter, no further action shall be taken on such application by the director until an order is received from the review board directing the director to:

(a) Refuse a drilling permit; or

(b) Issue a drilling permit for the proposed drilling location; or

(c) Issue a drilling permit for an alternate drilling location different from that requested by the well operator; or

(d) Issue a drilling permit either for the proposed drilling location or for an alternate drilling location different from that requested by the well operator, but not allow the drilling of the well for a period of not more than one year from the date of issuance of such permit.

Upon receipt of such board order, the director shall promptly undertake the action directed by the review board, except that the director shall not issue a drilling permit unless all other provisions of this article (except section fifteen) pertaining to the application for and approval of a drilling permit have been complied with. All permits issued by the director pursuant to this section shall be effective ten days after issuance unless the review board orders the director to stay the effectiveness of a permit for a period not to exceed thirty days from the date of issuance.

If a permit is issued, the director shall indicate the approved drilling location on the plat filed with the director in accordance with the provisions of section twelve of this article and shall number and keep an index of and docket each plat and notice mailed to the director as provided in section twelve of this article, and each notice mailed to the director as provided in section thirteen of this article, entering in such docket the name of the well operator, and the names and addresses of all persons notified, the dates of conferences, hearings and all other actions taken by the director and the review board. The director shall also prepare a record of the proceedings, which record shall include all applications, plats and other documents filed with the director, all notices given and proof of service thereof, all orders issued, all permits issued and a transcript of the hearing. The record prepared by the director shall be open to inspection by the public.

§22-6-18. Protective devices -- When well penetrates workable coal bed; when gas is found beneath or between workable coal beds.

(a) When a well penetrates one or more workable coal beds, the well operator shall run and cement a string of casing in the hole through the workable coal bed or beds in such a manner as will exclude all oil, gas or gas pressure from the coal bed or beds, except such oil, gas or gas pressure as may be found in such coal bed or beds. Such string of casing shall be run to a point at least thirty feet below the lowest workable coal bed which the well penetrates and shall be circulated and cemented from such point to the surface in such a manner as provided for in reasonable rules promulgated by the director in accordance with the provisions of chapter twenty-nine-a. After any such string of casing has been so run and cemented to the surface, drilling may proceed to the permitted depth.

(b) In the event that gas is found beneath a workable coal bed before the hole has been reduced from the size it had at the coal bed, a packer shall be placed below the coal bed, and above the gas horizon, and the gas by this means diverted to the inside of the adjacent string of casing through perforations made in such casing, and through it passed to the surface without contact with the coal bed. Should gas be found between two workable beds of coal, in a hole, of the same diameter from bed to bed, two packers shall be placed, with perforations in the casing between them, permitting the gas to pass to the surface inside the adjacent casing. In either of the cases here specified, the strings of casing shall extend from their seats to the top of the well.

§22-6-19. Same -- Continuance during life of well; dry or abandoned wells.

In the event that a well becomes productive of natural gas or petroleum, or is drilled for or converted for the introduction of pressure, whether liquid or gas, or for the introduction of liquid for the purposes provided for in section twenty-five of this article or for the disposal of pollutants or the effluent therefrom, all coal-protecting strings of casing and all water-protecting strings of casing shall remain in place until the well is plugged or abandoned. During the life of the well the annular spaces between the various strings of casing adjacent to workable beds of coal shall be kept open, and the top ends of all such strings shall be provided with casing heads, or such other suitable devices as will permit the free passage of gas and prevent filling of such annular spaces with dirt or debris.

Any well which is completed as a dry hole or which is not in use for a period of twelve consecutive months shall be presumed to have been abandoned and shall promptly be plugged by the operator in accordance with the provisions of this article, unless the operator furnishes satisfactory proof to the director that there is a bona fide future use for such well.

§22-6-2a. Oil and gas inspectors qualifications and salary.

(a) No person is eligible for appointment as an oil and gas inspector or supervising inspector unless, at the time of probationary appointment, the person: (1) Is a citizen of West Virginia, in good health and of good character, reputation and temperate habits; (2) has had at least two years actual relevant experience in the oil and gas industry: Provided, That no more than one year of the experience requirement may be satisfied by any of following: (i) A bachelor of science degree in science or engineering; (ii) an associate degree in petroleum technology; or (iii) actual relevant environmental experience including, without limitation, experience in wastewater, solid waste or reclamation, each full year of which shall be considered as a year of actual relevant experience in the oil and gas industry; and (3) has good theoretical and practical knowledge of oil and gas drilling and production methods, practices and techniques, sound safety practices and applicable water and mining laws.

(b) In order to qualify for appointment as an oil and gas inspector or supervising inspector by the secretary, an eligible applicant shall submit to a written and oral examination by the Division of Personnel within the Department of Administration and shall furnish any evidence of good health, character and other facts establishing eligibility required by the Division of Personnel. The Office of Oil and Gas shall determine the substance of the examinations administered to candidates for the positions of oil and gas inspector and supervising oil and gas inspector by the Division of Personnel. If the Division of Personnel finds after investigation and examination that an applicant: (1) Is eligible for appointment; and (2) has passed all written and oral examinations, the division shall add the applicant's name and grade to the register of qualified eligible candidates and certify its action to the secretary. No candidate's name may remain on the register for more than three years without requalifying.

(c) Every supervising oil and gas inspector shall be paid not less than $40,000 per year. Every oil and gas inspector shall be paid not less than $35,000 per year.

§22-6-20. Same -- When well is drilled through horizon of coalbed from which coal has been removed.

When a well is drilled through the horizon of a coalbed from which the coal has been removed, the hole shall be drilled at least thirty feet below the coalbed, of a size sufficient to permit the placing of a liner which shall start not less than twenty feet beneath the horizon of the coalbed and extend not less than twenty feet above it. Within this liner, which may be welded to the casing to be used, shall be centrally placed the largest-sized casing to be used in the well and the space between the liner and casing shall be filled with cement as they are lowered into the hole. Cement shall be placed in the bottom of the hole to a depth of twenty feet to form a sealed seat for both liner and casing: Provided, That the liner may extend back to the surface and serve as the freshwater or coal protection casing, if done in accordance with sections eighteen and twenty-one of this article, as applicable. If the liner is constructed in this manner, the next string of casing to be run into the well shall extend at least twenty feet below the coalbed. Cement shall be placed between that string of casing and the liner from the bottom of the casing to a point at least twenty feet above the coalbed. Following the setting of the liner, drilling shall proceed in the manner provided above. Should it be found necessary to drill through the horizon of two or more workable coalbeds from which the coal has been removed, the liner shall be started not less than twenty feet below the lowest horizon penetrated and shall extend to a point not less than twenty feet above the highest horizon.

§22-6-21. Same -- Installation of fresh water casings.

When a permit has been issued for the drilling of an oil or gas well or both, each well operator shall run and permanently cement a string of casing in the hole through the fresh water bearing strata in such a manner and to the extent provided for in rules promulgated by the director in accordance with the provisions of this chapter.

No oil or gas well shall be drilled nearer than two hundred feet from an existing water well or dwelling without first obtaining the written consent of the owner of such water well or dwelling.

§22-6-22. Well report, logs, core samples, and cuttings to be filed; confidentiality and permitted use; authority to promulgate rules; reporting of production data for horizontal wells.

(a) Within a reasonable time after the completion of the drilling of a shallow well or deep well, the well operator shall file with the secretary and with the state Geological and Economic Survey a completion report containing the following:

(1) The character, depth, and thickness of geological formations encountered, including fresh water, coal seams, mineral beds, brine, and oil and gas bearing formations; and

(2) Such other information as the secretary may require to effectuate the purposes of this chapter.

The secretary may promulgate such reasonable rules in accordance with §29A-3-1 et seq. of this code, as may be considered necessary to ensure that the character, depth, and thickness of geological formations encountered are accurately logged: Provided, That the secretary shall not require logging by the use of an electrical logging device: Provided, however, That if electrical, mechanical, or geophysical logs are recorded in the well, the secretary may request copies of these logs: Provided further, That mechanical or geophysical logs may not include vertical seismic profiles or two-dimensional or three-dimensional seismic information.

(b) If a well operator takes core samples, that activity shall be noted within the report, and, within 60 days after filing the completion report, the operator shall, subject to the terms of this article, provide the state Geological and Economic Survey with a complete set of cores, consisting of at least quarter slabs, correctly labeled and identified according to depth. The core samples requested by and provided to the state Geological and Economic Survey may not contain any materials or documents made with regard to analyzing or interpreting the core samples.

(c) If a well operator catches cuttings during the drilling of any deep or shallow well, that activity shall be noted within the report and, within 60 days after filing the completion report, the operator shall, subject to the terms of this article, provide the state Geological and Economic Survey with a sample of the cuttings, correctly labeled and identified according to depth.

(d) Any information, reports, cuttings, and core samples requested by and provided to the state Geological and Economic Survey by the operator shall be kept confidential at the written request of the operator for a specified amount of time as follows:

(1) Except for core samples, any logs, drill cuttings, reports and other information or materials that reveal trade secrets or other confidential business information relating to the competitive interests of the operator or the operator’s privy may not be disclosed to the public for one year following delivery, unless the operator consents in writing to a shorter time. At the operator’s written request, the period of confidentiality may be extended in annual increments: Provided, That the total period of confidentiality may not exceed three years.

(2) Any core samples may not be disclosed to the public for five years following delivery to the state Geological and Economic Survey, unless the operator consents in writing to a shorter time. At the operator’s written request, the period of confidentiality may be extended for an additional five years: Provided, That the total period of confidentiality may not exceed 10 years.

(e) Notwithstanding the provisions of subsection (d) of this section, the state Geological and Economic Survey may store and process confidential information within its minerals mapping or geographic information systems; however, that confidential information may not be revealed to the public until the lapsing of the period of confidentiality created pursuant to subsection (d) of this section. After the period of confidentiality has lapsed, statistics or other information generated as the result of storage and processing may be disclosed in the aggregate through articles, reports, maps, or lectures presented in accordance with generally accepted academic or scientific practices and in a manner to preclude the identification of a particular well or operator.

(f) A quarterly report of the monthly volumes of oil, natural gas, and natural gas liquids produced from any horizontal well drilled shall be filed with the Chief of the Office of Oil and Gas on a form prescribed by the Secretary of the West Virginia Department of Environmental Protection.  All reported data shall be made available to the public through the Office of Oil and Gas’ website within a reasonable time. The secretary has the express authority pursuant to this article, as well as pursuant to the powers enumerated in §22-6-2 of this code, to promulgate rules and to amend the current rules to require timely quarterly reporting of production data as well as to establish a process for collecting such data.

§22-6-23. Plugging, abandonment and reclamation of well; notice of intention; bonds; affidavit showing time and manner.

All dry or abandoned wells or wells presumed to be abandoned under the provisions of section nineteen of this article shall be plugged and reclaimed in accordance with this section and the other provisions of this article and in accordance with the rules promulgated by the secretary.

Prior to the commencement of plugging operations and the abandonment of any well, the well operator shall either: (a) Notify, by registered or certified mail, the secretary and the coal operator operating coal seams, the coal seam owner of record or lessee of record, if any, to whom notices are required to be given by section twelve of this article, and the coal operators to whom notices are required to be given by section thirteen of this article, of its intention to plug and abandon any such well (using such form of notice as the secretary may provide), giving the number of the well and its location and fixing the time at which the work of plugging and filling will be commenced, which time shall be not less than five days after the day on which such notice so mailed is received or in due course should be received by the secretary, in order that a representative or representatives of the secretary and such coal operator, owner or lessee, if any, may be present at the plugging and filling of the well: Provided, That whether such representatives appear or do not appear, the well operator may proceed at the time fixed to plug and fill the well in the manner hereinafter described; or (b) first obtain the written approval of the secretary and such coal operator, owner or lessee, if any; or (c) in the event the well to be plugged and abandoned is one on which drilling or reworking operations have been continuously progressing pursuant to authorization granted by the secretary, first obtain the verbal permission of the secretary or the secretary's designated representative to plug and abandon the well, except that the well operator shall, within a reasonable period not to exceed five days after the commencement of the plugging operations, give the written notices required by subdivision (a) above.

The well operator shall not be required to prepare or submit to the director a plat prior to the commencement of plugging operations as long as a plat pertaining to the particular well is on file with the director and accurately identifies the location of the well, or so long as there is also on file with the director the coordinates of the well established by a global positioning system. The coordinates established by a global positioning system must be filed with the secretary in either a written or electronic form prescribed by the secretary. The global positioning system used to establish the coordinates shall be accurate within the variance allowed by law for the distance between the actual location of the well and location shown on the plat that is required to be filed with a well permit application, or the secretary may establish the accuracy of the global positioning system by legislative rule promulgated pursuant to section two of this article.

No well may be plugged or abandoned unless prior to the commencement of plugging operations and the abandonment of any well the secretary is furnished a bond as provided in section twenty-six of this article. In no event prior to the commencement of plugging operations shall a lessee under a lease covering a well be required to give or sell the well to any person owning an interest in the well, including, but not limited to, the respective lessor, or agent of the lessor, nor may the lessee be required to grant a person with an interest in the well, including, but not limited to, the respective lessor, or agent of the lessor, an opportunity to qualify under section twenty-six of this article to continue operation of the well.

When the plugging, filling and reclamation of a well have been completed, an affidavit, in triplicate, shall be made (on a form to be furnished by the secretary) by two experienced persons who participated in the work, the secretary or the secretary's designated representative, in which affidavit shall be set forth the time and manner in which the well was plugged and filled and the land reclaimed. One copy of this affidavit shall be retained by the well operator, another (or true copies of same) shall be mailed to the coal operator or operators, if any, and the third to the secretary.

§22-6-24. Methods of plugging well.

Upon the abandonment or cessation of the operation of any well drilled for natural gas or petroleum, or drilled or converted for the introduction of pressure, whether liquid or gas, or for the introduction of liquid for the purposes provided for in section twenty-five of this article or for the disposal of pollutants or the effluent therefrom the well operator, at the time of such abandonment or cessation, shall fill and plug the well in the following manner:

(a) Where the well does not penetrate workable coal beds, it shall either be filled with mud, clay or other nonporous material from the bottom of the well to a point twenty feet above the top of its lowest oil, gas or water-bearing stratum; or a permanent bridge shall be anchored thirty feet below its lowest oil, gas or water-bearing stratum, and from such bridge it shall be filled with mud, clay or other nonporous material to a point twenty feet above such stratum; at this point there shall be placed a plug of cement or other suitable material which will completely seal the hole. Between this sealing plug and a point twenty feet above the next higher oil, gas or water-bearing stratum, the hole shall be filled, in the manner just described; and at such point there shall be placed another plug of cement or other suitable material which will completely seal the hole. In like manner the hole shall be filled and plugged, with reference to each of its oil, gas or water-bearing strata. However, whenever such strata are not widely separated and are free from water, they may be grouped and treated as a single sand, gas or petroleum horizon, and the aforesaid filling and plugging be performed as though there were but one horizon. After the plugging of all oil, gas or water-bearing strata, as aforesaid, a cement plug shall be placed approximately ten feet below the bottom of the largest casing in the well; from this point to the surface the well shall be filled with mud, clay or other nonporous material, except that a final cement plug shall be installed from a point one hundred feet below the surface to the surface. In case any of the oil or gas-bearing strata in a well shall have been shot, thereby creating cavities which cannot readily be filled in the manner above described, the well operator shall follow either of the following methods:

(1) Should the stratum which has been shot be the lowest one in the well, there shall be placed, at the nearest suitable point, but not less than twenty feet above the stratum, a plug of cement or other suitable material which will completely seal the hole. In the event, however, that the shooting has been done above one or more oil or gas-bearing strata in the well, plugging in the manner specified shall be done at the nearest suitable point, but not less than twenty feet below and above the stratum shot; or

(2) When such cavity shall be in the lowest oil or gas-bearing stratum in the well, a liner shall be placed which shall extend from below the stratum to a suitable point, but not less than twenty feet above the stratum in which shooting has been done. In the event, however, that the shooting has been done above one or more oil or gas-bearing strata in the well, the liner shall be so placed that it will extend not less than twenty feet above, nor less than twenty feet below, the stratum in which shooting has been done. Following the placing of the liner in the manner here specified it shall be compactly filled with cement, mud, clay or other nonporous sealing material.

(b) Where the well penetrates one or more workable coal beds and a coal protection string of casing has been circulated and cemented into the surface, the well shall be filled and securely plugged in the manner provided in subdivision (a) of this section, except that expanding cement shall be used instead of regular hydraulic cement, to a point approximately one hundred feet below the bottom of the coal protection string of casing.  From the point the well shall be plugged according to the provisions in paragraph (1) or (2) below:

(1) A two hundred foot plug of expanding cement shall be placed in the well.  From this point, the well shall be filled with mud, clay or other nonporous material to a point one hundred feet below the surface and a plug of cement shall be placed from the point one hundred feet below the surface to the surface with a monument installed therein extending thirty inches above ground level.

(2) A one hundred foot plug of expanding cement shall be placed in the well so that the top of such plug is located at a point just below the coal protection string of casing. After such plug has been securely placed in the well, the coal protection string of casing shall be emptied of liquid from the surface to a point one hundred feet below the lowest workable coal bed or to the bottom of the coal protection string of casing, whichever is shallower. A vent or other device approved by the secretary shall then be installed on the top of the coal protection string of casing in such a manner that will prevent liquids and solids from entering the well but will permit ready access to the full internal diameter of the coal protection string of casing when required. The coal protection string of casing and the vent or other device approved by the secretary shall extend, when finally in place, a distance of not less than thirty inches above ground level and shall be permanently marked with the well number assigned by the secretary;

(c) Where the well penetrates one or more workable coal beds and a coal protection string of casing has not been circulated and cemented into the surface, the well shall be filled and securely plugged in the manner provided in subsection (a) of this section to a point fifty feet below the lowest workable coal bed. Thereafter, a plug of cement shall be placed in the well at a point not less than forty feet below the lowest workable coal bed. After the cement plug has been securely placed in the well, the well shall be filled with cement to a point twenty feet above the lowest workable coal bed. From this point the well shall be filled with mud, clay or other nonporous material to a point forty feet beneath the next overlying workable coal bed, if such there be, and the well shall then be filled with cement from this point to a point twenty feet above such workable coal bed, and similarly, in case there are more overlying workable coal beds. After the filling and plugging of the well to a point above the highest workable coal bed, filling and plugging of the well shall continue in the manner provided in subsection (a) of this section to a point one hundred feet below the surface, and a plug of cement shall be installed from the point one hundred feet below the surface to the surface with a monument installed therein extending thirty inches above ground level;

(d)(1) Where the well penetrates one or more workable coal beds and a coal protection string of casing has not been circulated and cemented into the surface, a coal operator or coal seam owner may request that the well be plugged in the manner provided in subdivision (3) of this subsection rather than by the method provided in subsection (c) of this section. Such request (forms for which shall be provided by the secretary) must be filed in writing with the secretary prior to the scheduled plugging of the well, and must include the number of the well to be plugged and the name and address of the well operator. At the time such request is filed with the secretary, a copy of such request must also be mailed by registered or certified mail to the well operator named in the request.

(2) Upon receipt of such request, the secretary shall issue an order staying the plugging of the well and shall promptly determine the cost of plugging the well in the manner provided in subdivision (3) of this subsection and the cost of plugging the well in the manner provided in subsection (c) of this section. In making such determination, the secretary shall take into consideration any agreement previously made between the well operator and the coal operator or coal seam owner making the request. If the secretary determines that the cost of plugging the well in the manner provided in subsection (c) of this section exceeds the cost of plugging the well in the manner provided in subdivision (3) of this subsection, the secretary shall grant the request of the coal operator or owner and shall issue an order requiring the well operator to plug the well in the manner provided in subdivision (3) of this subsection. If the secretary determines that the cost of plugging the well in the manner provided in subsection (c) of this section is less than the cost of plugging the well in the manner provided in subdivision (3) of this subsection, the secretary shall request payment into escrow of the difference between the determined costs by the coal operator or coal seam owner making the request. Upon receipt of satisfactory notice of such payment, or upon receipt of notice that the well operator has waived such payment, the secretary shall grant the request of the coal operator or coal seam owner and shall issue an order requiring the well operator to plug the well in the manner provided in subdivision (3) of this subsection. If satisfactory notice of payment into escrow, or notice that the well operator has waived such payment, is not received by the secretary within fifteen days after the request for payment into escrow, the secretary shall issue an order permitting the plugging of the well in the manner provided in subsection (c) of this section. Copies of all orders issued by the secretary shall be sent by registered or certified mail to the coal operator or coal seam owner making the request and to the well operator. When the escrow agent has received certification from the secretary of the satisfactory completion of the plugging work and the reimbursable extra cost thereof (that is, the difference between the secretary’s determination of plugging cost in the manner provided in subsection (c) of this section and the well operator’s actual plugging cost in the manner provided in subdivision (3) of this subsection), the escrow agent shall pay the reimbursable sum to the well operator or the well operator’s nominee from the payment into escrow to the extent available. The amount by which the payment into escrow exceeds the reimbursable sum plus the escrow agent’s fee, if any, shall be repaid to the coal owner. If the amount paid to the well operator or the well operator’s nominee is less than the actual reimbursable sum, the escrow agent shall inform the coal owner, who shall pay the deficiency to the well operator or the well operator’s nominee within thirty days. If the coal operator breaches this duty to pay the deficiency, the well operator shall have a right of action and be entitled to recover damages as if for wrongful conversion of personality, and reasonable attorney fees.

(3) Where a request of a coal operator or coal seam owner filed pursuant to subdivision (1) of this subsection has been granted by the secretary, the well shall be plugged in the manner provided in subsection (a) of this section, except that expanding cement shall be used instead of regular hydraulic cement, to a point approximately two hundred feet below the lowest workable coal bed. A one hundred foot plug of expanding cement shall then be placed in the well beginning at the point approximately two hundred feet below the lowest workable coal bed and extending to a point approximately one hundred feet below the lowest workable coal bed. A string of casing with an outside diameter no less than four and one-half inches shall then be run into the well to a point approximately one hundred feet below the lowest workable coal bed and such string of casing shall be circulated and cemented into the surface. The casing shall then be emptied of liquid from a point approximately one hundred feet below the lowest workable coal bed to the surface, and a vent or other device approved by the secretary shall be installed on the top of the string of casing in such a manner that it will prevent liquids and solids from entering the well but will permit ready access to the full internal diameter of the coal protection string of casing when required. The string of casing and the vent or other device approved by the secretary shall extend, when finally in place, a distance of no less than thirty inches above ground level and shall be permanently marked with the well number assigned by the secretary. Notwithstanding the foregoing provisions of this subdivision, if under particular circumstances a different method of plugging is required to obtain the approval of another governmental agency for the safe mining through of said well, the secretary may approve such different method of plugging if he or she finds the same to be as safe for mining through and otherwise adequate to prevent gas or other fluid migration from the oil and gas reservoirs as the method above specified.

(e) Notwithstanding anything in this section to the contrary, where the well to be plugged is an abandoned well that has no known responsible party and the well operator is also a coal operator that intends to mine through the well, the well shall, at a minimum, be plugged as provided in subdivisions (1) and (2) of this subsection.

(1) The well will be cleaned out and prepared for plugging or replugging as follows:

(A) If the total depth of the well is less than four thousand feet, the operator shall completely clean out the well from the surface to at least two hundred feet below the base of the lowest workable coal bed, but the secretary may require cleaning to a greater depth due to excessive pressure within the well.  If the total depth of the well is four thousand feet or greater, the operator shall completely clean out the well from the surface to at least four hundred feet below the base of the lowest workable coal bed. The operator shall provide to the secretary all information it possesses concerning the geological nature of the strata and the pressure of the well, and shall remove all material from the entire diameter of the well, wall to wall;

(B) The operator shall prepare down-hole logs for each well. The logs shall consist of a caliper survey and log(s) suitable for determining the top, bottom, and thickness of all coal seams and potential hydrocarbon-producing strata, as well as the location for a bridge plug. The secretary may approve the use of a down-hole camera survey in lieu of down-hole logs. In addition, the owner shall maintain a journal that describes the depth of each material encountered; the nature of each material encountered; the bit size and type used to drill each portion of the hole; the length and type of each material used to plug the well; the length of casing(s) removed, perforated or ripped, or left in place; any sections where casing was cut or milled; and any other pertinent information concerning cleaning and sealing the well.  The operator shall maintain all invoices, work orders, and other records relating to all work on the well as part of the journal and provide to the secretary upon request;

(C) When cleaning, the operator shall make a diligent effort to remove all the casing in the well. If it is not possible to remove all the casing, then the operator shall take appropriate steps to ensure that the annulus between the casing and between the casings and the well walls are filled with expanding cement, with a minimum five tenths of one percent expansion upon setting, and contain no voids. If the casing cannot be removed, it must be cut or milled at all workable coal bed levels. Any casing which remains shall be perforated or ripped.  If the total depth of the well is less than four thousand feet, perforations or rips are required every fifty feet from two hundred feet below the base of the lowest mineable coal bed up to one hundred feet above the uppermost workable coal bed. If the total depth of the well is four thousand feet or greater, perforations or rips are required every fifty feet from four hundred feet below the base of the lowest workable coal bed up to one hundred feet above the uppermost workable coal bed. If the operator, using a casing bond log, demonstrates to the satisfaction of the secretary that all annuli in the well are already adequately sealed with cement, then the operator shall not be required to perforate or rip the casing.  When multiple casing and tubing strings are present in the workable coal bed, any casing which remains shall be ripped or perforated and filled with expanding cement in accordance with this paragraph.  The operator shall maintain a casing bond log for each casing and tubing string if used in lieu of ripping or perforating multiple strings;

(D) If the secretary concludes that the completely cleaned well emits excessive amounts of gas, the operator must place a mechanical bridge plug in the well. If the total depth of the well is less than four thousand feet, the mechanical bridge plug shall be placed in a competent stratum at least two hundred feet below the base of the lowest workable coal bed, but above the top of the uppermost hydrocarbon-producing stratum. If the total depth of the well is four thousand feet or greater, the mechanical bridge plug shall be placed in a competent stratum at least four hundred feet below the base of the lowest mineable coal bed, but above the top of the uppermost hydrocarbon-producing stratum: Provided, That the secretary may require a greater distance to set the mechanical bridge plug, regardless of the total depth of the well, based upon excessive pressure within the well. The operator shall provide the secretary with all information the operator possesses concerning the geologic nature of the strata and pressure of the well. If it is not possible to set a mechanical bridge plug, an appropriately sized packer may be used; and

(E) If the upper-most hydrocarbon-producing stratum is within three hundred feet of the base of the lowest workable coal bed, the operator shall properly place mechanical bridge plugs as described in paragraph (D) of this subdivision to isolate the hydrocarbon-producing stratum from the expanding cement plug. Nevertheless, if the total depth of the well is less than four thousand feet, the operator shall place a minimum of two hundred feet of expanding cement below the lowest workable coal bed. If the total depth of the well is four thousand feet or greater, the operator shall place a minimum of four hundred feet of expanding cement below the lowest mineable coal bed: Provided, That the secretary may require a greater distance to set the mechanical bridge plug, regardless of the total depth of the well, based upon excessive pressure within the well.

(2) After the well is completely cleaned pursuant to subdivision one of this subsection, the operator shall plug or replug the well to the surface as follows:

If the total depth of the well is less than four thousand feet, the operator shall pump expanding cement slurry down the well to form a plug which runs from at least two hundred feet below the base of the lowest workable coal bed to the surface. If the total depth of the well is four thousand feet or greater, the operator shall pump expanding cement slurry down the well to form a plug which runs from at least four hundred feet below the base of the lowest workable coal bed to the surface: Provided, That the secretary may, regardless of the total depth of the well, require a lower depth based upon excessive pressure within the well. The expanding cement slurry will be placed in the well under a pressure of at least two hundred pounds per square inch. Portland cement shall be used to fill the area from one hundred feet above the top of the uppermost workable coal seam to the surface: Provided, That the secretary may require a higher distance based upon excessive pressure within the well;

(f) Any person may apply to the secretary for an order to clean out and replug a previously plugged well in a manner which will permit the safe mining through of such well. Such application shall be filed with the secretary and shall contain the well number, a general description of the well location, the name and address of the owner of the surface land upon which the well is located, a copy of or record reference to a deed, lease or other document which entitles the applicant to enter upon the surface land, a description of the methods by which the well was previously plugged, and a description of the method by which such applicant proposes to clean out and replug the well. At the time an application is filed with the secretary, a copy shall be mailed by registered or certified mail to the owner or owners of the land, and the oil and gas lessee of record, if any, of the site upon which the well is located. If no objection to the replugging of the well is filed by any such landowner or oil and gas lessee within thirty days after the filing of the application, and if the secretary determines that the method proposed for replugging the well will permit the safe mining through of such well, the secretary shall grant the application by an order authorizing the replugging of the well. Such order shall specify the method by which the well shall be replugged, and copies thereof shall be mailed by certified or registered mail to the applicant and to the owner or owners of the land, and the oil and gas lessee, if any, of the site upon which such well is located.  If any such landowner or oil and gas lessee objects to the replugging of the well, the secretary shall notify the applicant of such objection. Thereafter, the director shall schedule a hearing to consider the objection, which hearing shall be held after notice by registered or certified mail to the objectors and the applicant.  After consideration of the evidence presented at the hearing, the secretary shall issue an order authorizing the replugging of the well if the secretary determines that replugging of the well will permit the safe mining through of such well. Such order shall specify the manner in which the well shall be replugged and copies thereof shall be sent by registered or certified mail to the applicant and objectors. The secretary shall issue an order rejecting the application if the secretary determines that the proposed method for replugging the well will not permit the safe mining through of such well;

(g) All persons adversely affected, by a determination or order of the secretary issued pursuant to the provisions of this section shall be entitled to judicial review in accordance with the provisions of articles five and six, chapter twenty-nine-a of this code.

§22-6-25. Introducing liquid pressure into producing strata to recover oil contained therein.

The owner or operator of any well or wells which produce oil or gas may allow such well or wells to remain open for the purpose of introducing water or other liquid pressure into and upon the producing strata for the purpose of recovering the oil contained therein, and may drill additional wells for like purposes, provided that the introduction of such water or other liquid pressure shall be controlled as to volume and pressure and shall be through casing or tubing which shall be so anchored and packed that no water-bearing strata or other oil, or gas-bearing sand or producing stratum, above or below the producing strata into and upon which such pressure is introduced, shall be affected thereby, fulfilling requirements as set forth under section fourteen.

§22-6-26. Performance bonds; corporate surety or other security.

(a) No permit shall be issued pursuant to this article unless a bond as described in subsection (d) of this section which is required for a particular activity by this article is or has been furnished as provided in this section.

(b) A separate bond as described in subsection (d) of this section may be furnished for a particular oil or gas well, or for a particular well for the introduction of liquids for the purposes provided in section twenty-five of this article. A separate bond as described in subsection (d) of this section shall be furnished for each well drilled or converted for the introduction of liquids for the disposal of pollutants or the effluent therefrom. Each of these bonds shall be in the sum of $5,000, payable to the State of West Virginia, conditioned on full compliance with all laws, rules relating to the drilling, redrilling, deepening, casing and stimulating of oil and gas wells (or, if applicable, with all laws, rules relating to drilling or converting wells for the introduction of liquids for the purposes provided in section twenty-five of this article or for the introduction of liquids for the disposal of pollutants or the effluent therefrom) and to the plugging, abandonment and reclamation of wells and for furnishing such reports and information as may be required by the director.

(c) When an operator makes or has made application for permits to drill or stimulate a number of oil and gas wells or to drill or convert a number of wells for the introduction of liquids for the purposes provided in section twenty-five of this article, the operator may in lieu of furnishing a separate bond furnish a blanket bond in the sum of $50,000, payable to the State of West Virginia, and conditioned as aforesaid in subsection (b) of this section.

(d) The form of the bond required by this article shall be approved by the director and may include, at the option of the operator, surety bonding, collateral bonding (including cash and securities) letters of credit, establishment of an escrow account, self-bonding or a combination of these methods. If collateral bonding is used, the operator may elect to deposit cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank, or the homeowners' loan corporation; full faith and credit general obligation bonds of the State of West Virginia, or other states, and of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the division. The cash deposit or market value of such securities or certificates shall be equal to or greater than the amount of the bond. The director shall, upon receipt of any such deposit of cash, securities or certificates, promptly place the same with the Treasurer of the State of West Virginia whose duty it shall be to receive and hold the same in the name of the state in trust for the purpose of which the deposit is made when the permit is issued. The operator shall be entitled to all interest and income earned on the collateral securities filed by such operator. The operator making the deposit shall be entitled from time to time to receive from the state Treasurer, upon the written approval of the director, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with the Treasurer in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the amount of the bond.

(e) When an operator has furnished a separate bond from a corporate bonding or surety company to drill, fracture or stimulate an oil or gas well and the well produces oil or gas or both, its operator may deposit with the director cash from the sale of the oil or gas or both until the total deposited is $5,000. When the sum of the cash deposited is n $5,000, the separate bond for the well shall be released by the director. Upon receipt of such cash, the director shall immediately deliver the same to the Treasurer of the State of West Virginia. The Treasurer shall hold such cash in the name of the state in trust for the purpose for which the bond was furnished and the deposit was made. The operator shall be entitled to all interest and income which may be earned on the cash deposited so long as the operator is in full compliance with all laws, rules relating to the drilling, redrilling, deepening, casing, plugging, abandonment and reclamation of the well for which the cash was deposited and so long as the operator has furnished all reports and information as may be required by the director. If the cash realized from the sale of oil or gas or both from the well is not sufficient for the operator to deposit with the director the sum of $10,000 within one year of the day the well started producing, the corporate or surety company which issued the bond on the well may notify the operator and the director of its intent to terminate its liability under its bond. The operator then shall have thirty days to furnish a new bond from a corporate bonding or surety company or collateral securities or other forms of security, as provided in the next preceding paragraph of this section with the director. If a new bond or collateral securities or other forms of security are furnished by the operator, the liability of the corporate bonding or surety company under the original bond shall terminate as to any acts and operations of the operator occurring after the effective date of the new bond or the date the collateral securities or other forms of security are accepted by the Treasurer of the State of West Virginia. If the operator does not furnish a new bond or collateral securities or other forms of security, as provided in the next preceding paragraph of this section, with the director, the operator shall immediately plug, fill and reclaim the well in accordance with all of the provisions of law and rules applicable thereto. In such case, the corporate or surety company which issued the original bond shall be liable for any plugging, filling or reclamation not performed in accordance with such laws and rules.

(f) Any separate bond furnished for a particular well prior to the effective date of this chapter shall continue to be valid for all work on the well permitting prior to July 11, 1985; but no permit shall hereafter be issued on such a particular well without a bond complying with the provisions of this section. Any blanket bond furnished prior to July 11, 1985 shall be replaced with a new blanket bond conforming to the requirements of this section, at which time the prior bond shall be discharged by operation of law; and if the director determines that any operator has not furnished a new blanket bond, the director shall notify the operator by certified mail, return receipt requested, of the requirement for a new blanket bond; and failure to submit a new blanket bond within sixty days after receipt of the notice from the director shall work a forfeiture under subsection (i) of this section of the blanket bond furnished prior to July 11, 1985.

(g) Any such bond shall remain in force until released by the director and the director shall release the same upon satisfaction that the conditions thereof have been fully performed. Upon the release of any such bond, any cash or collateral securities deposited shall be returned by the director to the operator who deposited same.

(h) Whenever the right to operate a well is assigned or otherwise transferred, the assignor or transferor shall notify the department of the name and address of the assignee or transferee by certified mail, return receipt requested, not later than five days after the date of the assignment or transfer. No assignment or transfer by the owner shall relieve the assignor or transferor of the obligations and liabilities unless and until the assignee or transferee files with the department the well name and the permit number of the subject well, the county and district in which the subject well is located, the names and addresses of the assignor or transferor, and assignee or transferee, a copy of the instrument of assignment or transfer accompanied by the applicable bond, cash, collateral security or other forms of security, described in section twelve, fourteen, twenty-three or twenty-six of this article, and the name and address of the assignee's or transferee's designated agent if assignee or transferee would be required to designate such an agent under section six of this article, if assignee or transferee were an applicant for a permit under said section six. Every well operator required to designate an agent under this section shall within five days after the termination of such designation notify the department of such termination and designate a new agent.

Upon compliance with the requirements of this section by assignor or transferor and assignee or transferee, the director shall release assignor or transferor from all duties and requirements of this article, and the deputy director shall give written notice of release unto assignor or transferor of any bond and return unto assignor or transferor any cash or collateral securities deposited pursuant to section twelve, fourteen, twenty-three or twenty-six of this article.

(i) If any of the requirements of this article or rules promulgated pursuant thereto or the orders of the director have not been complied with within the time limit set by the violation notice as defined in sections three, four and five of this article, the performance bond shall then be forfeited.

(j) When any bond is forfeited pursuant to the provisions of this article or rules promulgated pursuant thereto, the director shall give notice to the Attorney General who shall collect the forfeiture without delay.

(k) All forfeitures shall be deposited in the Treasury of the State of West Virginia in the special reclamation fund as defined in section twenty-nine of this article.

§22-6-27. Cause of action for damages caused by explosions.

Any person suffering personal injury or property damage due to any explosion caused by any permittee, shall have a cause of action against such permittee for three years after the explosion regardless of when the explosion occurred.

§22-6-28. Supervision by director over drilling and reclamation operations; complaints; hearings; appeals.

(a) The director shall exercise supervision over the drilling, casing, plugging, filling and reclamation of all wells and shall have such access to the plans, maps and other records and to the properties of the well operators as may be necessary or proper for this purpose, and, either as the result of its own investigations or pursuant to charges made by any well operator or coal operator, the director may enter, or shall permit any aggrieved person to file before the director, a formal complaint charging any well operator with not drilling or casing, or not plugging or filling, or reclaiming any well in accordance with the provisions of this article, or to the order of the director. True copies of any such complaints shall be served upon or mailed by registered mail to any person so charged, with notice of the time and place of hearing, of which the operator or operators so charged shall be given at least five days' notice. At the time and place fixed for hearing, full opportunity shall be given any person so charged or complaining to be heard and to offer such evidence as desired, and after a full hearing, at which the director may offer in evidence the results of such investigations as the director may have made, the director shall make findings of fact and enter such order as in the director's judgment is just and right and necessary to secure the proper administration of this article, and if the director deems necessary, restraining the well operator from continuing to drill or case any well or from further plugging, filling or reclaiming the same, except under such conditions as the director may impose in order to ensure a strict compliance with the provisions of this article relating to such matters.

(b) Except as provided in subsection (c) of this section, any well operator or coal operator adversely affected by a final decision or order of the director, may appeal in the manner prescribed in section four, article five, chapter twenty-nine-a of this code.

(c) Any person having an interest which is or may be adversely affected, or who is aggrieved by an order of the director, or by the issuance or denial of a permit, or by the permit's terms and conditions, where the subject to such order, permits or terms and conditions is solid waste, may appeal to the environmental quality board in the same manner as appeals are taken under the solid waste management act, section sixteen, article fifteen of this chapter. For the purpose of this subsection the term solid waste has the same meaning as would be given that term pursuant to section two, article fifteen of this chapter but for the exemption related to waste or material regulated by this chapter, chapter twenty-two-b or chapter twenty-two-c of this code.

§22-6-29. Operating permit and processing fund; special reclamation fund; fees.

(a) There is hereby continued within the Treasury of the State of West Virginia the special fund known as the Oil and Gas Operating Permit and Processing Fund, and the secretary shall deposit with the state Treasurer to the credit of such special fund all fees collected under the provisions of §22-6-2(c)(10), §22-6-2(c)(11), §22-6-2(c)(12), and §22-6-2(c)(13) of this code.

The Oil and Gas Operating Permit and Processing Fund shall be administered by the secretary for the purposes of carrying out the provisions of this chapter. Fees collected under §22-6-2(c)(11), (12) and (13) of this code not used for other purposes may only be transferred to the Oil and Gas Reclamation Fund that is continued in §22-6-29(b) of this code at the discretion of the secretary.

The secretary shall make an annual report to the Governor and to the Legislature on the use of the fund, and shall make a detailed accounting of all expenditures from the Oil and Gas Operating Permit and Processing Fund.

(b) In addition to any other fees required by the provisions of §22-6-1 et seq. of this code, every applicant for a permit to drill a well shall, before the permit is issued, pay to the secretary a special reclamation fee of $150 for each activity for which a well work application is required to be filed: Provided, That a special reclamation fee shall not be assessed for plugging activities. Such special reclamation fee shall be paid at the time the application for a drilling permit is filed with the secretary and the payment of such reclamation fee shall be a condition precedent to the issuance of said permit.

There is hereby continued within the Treasury of the State of West Virginia the special fund known as the Oil and Gas Reclamation Fund, and the secretary shall deposit with the state Treasurer to the credit of such special fund all special reclamation fees collected. The proceeds of any bond forfeited under the provisions of §22-6-1 et seq. of this code shall inure to the benefit of, and shall be deposited in, such Oil and Gas Reclamation Fund.

The Oil and Gas Reclamation Fund shall be administered by the secretary. The secretary shall cause to be prepared plans for the reclaiming and plugging of abandoned wells which have not been reclaimed or plugged or which have been improperly reclaimed or plugged. The secretary, as funds become available in the Oil and Gas Reclamation Fund, shall reclaim and properly plug wells in accordance with said plans and specifications and in accordance with the provisions of §22-6-1 et seq. of this code relating to the reclaiming and plugging of wells and all rules promulgated thereunder. Such funds may also be utilized for the purchase of abandoned wells, where such purchase is necessary, and for the reclamation of such abandoned wells, and for any engineering, administrative, and research costs as may be necessary to properly effectuate the reclaiming and plugging of all wells, abandoned or otherwise.

The secretary may avail the division of any federal funds provided on a matching basis that may be made available for the purpose of reclaiming or plugging any wells.

The secretary shall make an annual report to the Governor and to the Legislature setting forth the number of wells reclaimed or plugged through the use of the Oil and Gas Reclamation Fund provided for herein. Such report shall identify each such reclamation and plugging project, state the number of wells reclaimed or plugged thereby, show the county wherein such wells are located, and shall make a detailed accounting of all expenditures from the Oil and Gas Reclamation Fund.

All wells shall be reclaimed or plugged by contract entered into by the secretary on a competitive bid basis as provided for under the provisions of §5A-3-1 et seq. of this code and the rules promulgated thereunder.

§22-6-30. Reclamation requirements.

The operator of a well shall reclaim the land surface within the area disturbed in siting, drilling, completing or producing the well in accordance with the following requirements:

(a) Within six months after the completion of the drilling process, the operator shall fill all the pits for containing muds, cuttings, salt water and oil that are not needed for production purposes, or are not required or allowed by state or federal law or rule and remove all concrete bases, drilling supplies and drilling equipment. Within such period, the operator shall grade or terrace and plant, seed or sod the area disturbed that is not required in production of the well where necessary to bind the soil and prevent substantial erosion and sedimentation. No pit may be used for the ultimate disposal of salt water. Salt water and oil shall be periodically drained or removed, and properly disposed of, from any pit that is retained so the pit is kept reasonably free of salt water and oil.

(b) Within six months after a well that has produced oil or gas is plugged, or after the plugging of a dry hole, the operator shall remove all production and storage structures, supplies and equipment, and any oil, salt water and debris, and fill any remaining excavations. Within such period, the operator shall grade or terrace and plant, seed or sod the area disturbed where necessary to bind the soil and prevent substantial erosion and sedimentation.

The director may, upon written application by an operator showing reasonable cause, extend the period within which reclamation shall be completed, but not to exceed a further six-month period.

If the director refuses to approve a request for extension, the refusal shall be by order.

(c) It shall be the duty of an operator to commence the reclamation of the area of land disturbed in siting, drilling, completing or producing the well in accordance with soil erosion and sediment control plans approved by the director or the director's designate.

(d) The director shall promulgate rules setting forth requirements for the safe and efficient installation and burying of all production and gathering pipelines where practical and reasonable except that such rules shall not apply to those pipelines regulated by the Public Service Commission.

§22-6-31. Preventing waste of gas; plan of operation required for wasting gas in process of producing oil; rejection thereof.

Natural gas shall not be permitted to waste or escape from any well or pipeline, when it is reasonably possible to prevent such waste, after the owner or operator of such gas, or well, or pipeline, has had a reasonable length of time to shut in such gas in the well, or make the necessary repairs to such well or pipeline to prevent such waste: Provided, That (a) if, in the process of drilling a well for oil or gas, or both, gas is found in such well, and the owner or operator thereof desires to continue to search for oil or gas, or both, by drilling deeper in search of lower oil or gas-bearing strata, or (b) if it becomes necessary to make repairs to any well producing gas, commonly known as "cleaning out," and if in either event it is necessary for the gas in such well to escape therefrom during the process of drilling or making repairs, as the case may be, then the owner or operator of such well shall prosecute such drilling or repairs with reasonable diligence, so that the waste of gas from the well shall not continue longer than reasonably necessary, and if, during the progress of such deeper drilling or repairs, any temporary suspension thereof becomes necessary, the owner or operator of such well shall use all reasonable means to shut in the gas and prevent its waste during such temporary suspension: Provided, however, That in all cases where both oil and gas are found and produced from the same oil and gas-bearing stratum, and where it is necessary for the gas therefrom to waste in the process of producing the oil, the owner or operator shall use all reasonable diligence to conserve and save from waste so much of such gas as it is reasonably possible to save, but in no case shall such gas from any well be wasted in the process of producing oil therefrom until the owner or operator of such well shall have filed with the director a plan of operation for said well showing, among other things, the gas-oil production ratio involved in such operation, which plan shall govern the operation of said well unless the director shall, within ten days from the date on which such plan is submitted to the director, make a finding that such plan fails, under all the facts and circumstances, to propose the exercise of all reasonable diligence to conserve and save from waste so much of such gas as it is reasonably possible to save, in which event production of oil at such well by the wasting of gas shall cease and desist until a plan of operation is approved by the director. Successive plans of operation may be filed by the owner or operator of any such well with the director.

§22-6-32. Right of adjacent owner or operator to prevent waste of gas; recovery of cost.

If the owner or operator of any such well shall neglect or refuse to drill, case and equip, or plug and abandon, or shut in and conserve from waste the gas produced therefrom, as required to be done and performed by the preceding sections of this article, for a period of twenty days after a written notice so to do, which notice may be served personally upon the owner or operator, or may be posted in a conspicuous place at or near the well, it shall be lawful for the owner or operator of any adjacent or neighboring lands or the director to enter upon the premises where such well is situated and properly case and equip such well, or, in case the well is to be abandoned, to properly plug and abandon it, or in case the well is wasting gas, to properly shut it in and make such needed repairs to the well to prevent the waste of gas, in the manner required to be done by the preceding sections of this article; and the reasonable cost and expense incurred by an owner or operator or the director in so doing shall be paid by the owner or operator of such well and may be recovered as debts of like amount are by law recoverable.

The director may utilize funds and procedures established pursuant to section twenty-nine of this article for the purposes set out in the section. Amounts recovered by the director pursuant to this section shall be deposited in the oil and gas reclamation fund established pursuant to section twenty-nine of this article.

§22-6-33. Restraining waste.

Aside from and in addition to the imposition of any penalties under this article, it shall be the duty of any circuit court in the exercise of its equity jurisdiction to hear and determine any action which may be filed to restrain the waste of natural gas in violation of this article, and to grant relief by injunction or by other decrees or orders, in accordance with the principles and practice in equity. The plaintiff in such action shall have sufficient standing to maintain the same if the plaintiff shall aver and prove that the plaintiff is interested in the lands situated within the distance of one mile from such well, either as an owner of such land, or of the oil or gas, or both, thereunder, in fee simple, or as an owner of leases thereof or of rights therein for the production of oil and gas or either of them or as the director.

§22-6-34. Offenses; penalties.

(a) Any person or persons, firm, partnership, partnership association or corporation who willfully violates any provision of this article or any rule or order promulgated hereunder shall be subject to a civil penalty not exceeding $2,500. Each day a violation continues after notice by the division constitutes a separate offense. The penalty shall be recovered by a civil action brought by the division, in the name of the state, before the circuit court of the county in which the subject well or facility is located. All such civil penalties collected shall be credited to the General Fund of the state.

(b) Any person or persons, firm, partnership, partnership association or corporation willfully violating any of the provisions of this article which prescribe the manner of drilling and casing or plugging and filling any well, or which prescribe the methods of conserving gas from waste, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $5,000, or imprisonment in jail for not exceeding twelve months, or both, in the discretion of the court, and prosecutions under this section may be brought in the name of the State of West Virginia in the court exercising criminal jurisdiction in the county in which the violation of such provisions of the article or terms of such order was committed, and at the instance and upon the relation of any citizens of this state.

§22-6-35. Civil action for contamination or deprivation of fresh water source or supply; presumption.

In any action for contamination or deprivation of a fresh water source or supply within one thousand feet of the site of drilling for an oil or gas well, there shall be a rebuttable presumption that such drilling, and such oil or gas well, or either, was the proximate cause of the contamination or deprivation of such fresh water source or supply.

§22-6-36. Declaration of oil and gas notice by owners and lessees of coal seams.

For purposes of notification under this article, any owner or lessee of coal seams shall file a declaration of the owner's or lessee's interest in such coal seams with the clerk of the county commission in the county where such coal seams are located. Said clerk shall file and index such declaration in accordance with section two, article one, chapter thirty-nine of this code, and shall index the name of the owner or lessee of such coal seams in the grantor index of the record maintained for the indexing of leases.

The declaration shall entitle such owner or lessee to the notices provided in sections twelve, thirteen, fourteen and twenty-three of this article: Provided, That the declaring owner shall be the record owner of the coal seam, and the declaring lessee shall be the record lessee with the owner's or lessee's source or sources of title recorded prior to recording such lessee's declaration.

The declaration shall be acknowledged by such owner or lessee, and in the case of a lessee, may be a part of the coal lease under which the lessee claims. Such declaration may be in the following language:

"DECLARATION OF OIL AND GAS NOTICE"

"The undersigned hereby declares:

(1) The undersigned is the ('owner' or 'lessee') of one or more coal seams or workable coal beds as those terms are defined in section one of this article.

(2) The coal seam(s) or workable coal bed(s) owned or leased partly or wholly by the undersigned lie(s) under the surface of lands described as follows:

(Here insert a description legally adequate for a deed, whether by metes and bounds or other locational description, or by title references such as a book and page legally sufficient to stand in lieu of a locational description.)

(3) The undersigned desires to be given all notices of oil and gas operations provided by sections twelve, thirteen, fourteen and twenty-three of this article, addressed as follows:

(Here insert the name and mailing address of the undersigned owner or lessee.)

_______________________________

 (Signature)

(Here insert an acknowledgment legally adequate for a deed)."

The benefits of the foregoing declaration shall be personal to the declaring owner or lessee, and not transferable or assignable in any way.

§22-6-37. Rules, orders and permits remain in effect.

The rules promulgated and all orders and permits in effect upon the effective date of this article pursuant to the provisions of former article one, chapter twenty-two-b of this code shall remain in full force and effect as if such rules, orders and permits were adopted by the director established in this chapter but all such rules, orders and permits shall be subject to review by the director to ensure they are consistent with the purposes and policies set forth in this chapter.

§22-6-38. Application of article; exclusions.

This article shall not apply to or affect any well work permitted prior to the effective date of this article under former article one, chapter twenty-two-b of this code, unless such well is, after completion, whether such completion is prior to or subsequent to the effective date of this article, deepened subsequent to the effective date of this article through another coal seam to another formation above the top of the uppermost member of the "Onondaga Group" or to a depth of less than six thousand feet, whichever is shallower.

§22-6-39. Injunctive relief.

(a) In addition to other remedies, and aside from various penalties provided by law, whenever it appears to the director that any person is violating or threatening to violate any provision of this article, any order or final decision of the director, or any lawful rule promulgated hereunder, the director may apply in the name of the state to the circuit court of the county in which the violations or any part thereof has occurred, is occurring or is about to occur, or the judge thereof in vacation, for an injunction against such persons and any other persons who have been, are or are about to be involved in any practices, acts or admissions so in violation, enjoining such person or persons from any violation or violations. Such application may be made and prosecuted to conclusion, whether or not any violation or violations have resulted or shall result, in prosecution or conviction under the provisions of this article.

(b) Upon application by the director, the circuit courts of this state may, by mandatory or prohibitory injunction compel compliance with the provisions of this article, and all orders and final decisions of the director. The court may issue a temporary injunction in any case pending a decision on the merits of any application filed. Any other section of this code to the contrary notwithstanding, the state shall not be required to furnish bond or other undertaking as a prerequisite to obtaining mandatory, prohibitory or temporary injunctive relief under the provisions of this article.

(c) The judgment of the circuit court upon application permitted by the provisions of this section, shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be sought in the manner and within the time provided by law for appeals from circuit courts in other civil actions.

(d) The director shall be represented in all such proceedings by the Attorney General or the Attorney General's assistants or in such proceedings in the circuit courts by the prosecuting attorney of the several counties as well, all without additional compensation. The director, with the written approval of the Attorney General, may employ special counsel to represent the director in any such proceedings.

(e) If the director shall refuse or fail to apply for an injunction to enjoin a violation or threatened violation of any provision of this article, any order or final decision of the director, or any rules promulgated hereunder, within ten days after receipt of a written request to do so by any well operator, coal operator, operating coal seams beneath the tract of land, or the coal seam owner or lessee, if any, if said owner or lessee is not yet operating said coal seams beneath said tract of land, adversely affected by such violation or threatened violation, the person making such request may apply on their own behalf for an injunction to enjoin such violation or threatened violation in any court in which the director might have brought suit. The director shall be made party defendant in such application in addition to the person or persons violating or threatening to violate any provisions of this article, any final order or decision of the director, or any rule promulgated hereunder. The application shall proceed and injunctive relief may be granted in the same manner as if the application had been made by the director: Except that the court may require a bond or other undertaking from the plaintiff.

§22-6-40. Appeal from order of issuance or refusal of permit to drill or fracture; procedure.

Any party to the proceeding under section fifteen of this article or section seven, article eight, chapter twenty-two-c of this code adversely affected by the issuance of a drilling permit or to the issuance of a fracturing permit or the refusal of the director to grant a drilling permit or fracturing permit is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such judicial review with like effect as if the provisions of said section four were set forth in extenso in this section.

The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

§22-6-41. Appeal from order of issuance or refusal of permit for drilling location for introduction of liquids or waste or from conditions of converting procedure.

Any party to the proceedings under section sixteen of this article adversely affected by the order of issuance of a drilling permit or to the issuance of a fracturing permit or the refusal of the director to grant a drilling permit or fracturing permit is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such judicial review with like effect as if the provisions of section four were set forth in extenso in this section.

The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

§22-6A-1. Short title.

This article shall be known and cited as the Horizontal Well Act.

§22-6A-2. Legislative findings; declaration of public policy.

(a) The Legislature finds that:

(1) The advent and advancement of new and existing technologies and drilling practices have created the opportunity for the efficient development of natural gas contained in underground shales and other geologic formations;

(2) These practices have resulted in a new type and scale of natural gas development that utilize horizontal drilling techniques, allow the development of multiple wells from a single surface location, and may involve fracturing processes that use and produce large amounts of water;

(3) In some instances these practices may require the construction of large impoundments or pits for the storage of water or wastewater;

(4) Existing laws and regulations developed for conventional oil and gas operations do not adequately address these new technologies and practices;

(5) The secretary should have broad authority to condition the issuance of well work permits when, in the secretary's discretion, it is necessary to protect the safety of persons, to prevent inadequate or ineffective erosion and sediment control plans, to prevent damage to publicly owned lands or resources, to protect fresh water sources or supplies or to otherwise protect the environment;

(6) Concomitant with the broad powers to condition the issuance of well work permits, the secretary should also have broad authority to waive certain minimum requirements of this article when, in his or her discretion, such waiver is appropriate: Provided, That the secretary shall submit a written report of the number of waivers granted to the Legislature commencing January 1, 2013, and each year thereafter;

(7) Practices involving reuse of water in the fracturing and stimulating of horizontal wells should be considered and encouraged by the department, as appropriate; and

(8) Allowing the responsible development of our state's natural gas resources will enhance the economy of our state and the quality of life for our citizens while assuring the long term protection of the environment.

(b) The Legislature declares that the establishment of a new regulatory scheme to address new and advanced natural gas development technologies and drilling practices is in the public interest and should be done in a manner that protects the environment and our economy for current and future generations.

(c) The Legislature declares that in view of the urgent need for prompt decision of matters submitted to the secretary under this article, all actions which the secretary or oil and gas inspectors are required to take under this article shall be taken as rapidly as practicable, consistent with adequate consideration of the issues involved.

§22-6A-3. Applicability; exceptions.

Notwithstanding any other provision of this code to the contrary, the provisions of this article shall apply to any natural gas well, other than a coalbed methane well, drilled using a horizontal drilling method, and which disturbs three acres or more of surface, excluding pipelines, gathering lines and roads, or utilizes more than two hundred ten thousand gallons of water in any thirty day period: Provided, That this article does not apply to or affect any well work permitted for a horizontal well or orders issued regarding horizontal wells or permit applications pending prior to the effective date of this article: Provided, however, That this article shall not apply to or affect any rights bargained for in any agreement between a surface owner and operator made prior to the effective date of this article.

§22-6A-4. Definitions.

(a) All definitions set forth in article six of this chapter apply when those defined terms are used in this article, unless the context in which the term is used clearly requires a different meaning.

(b) Unless the context in which the term used clearly requires a different meaning, as used in this article:

(1) "Best management practices" means schedules of activities, prohibitions of practices, maintenance procedures and other management practices established by the department to prevent or reduce pollution of waters of this state. For purposes of this article, best management practices also includes those practices and procedures set out in the Erosion and Sediment Control Manual of the Office of Oil and Gas;

(2) "Department" means the Department of Environmental Protection;

(3) "Flowback Recycle Pit" means a pit used for the retention of flowback and freshwater and into which no other wastes of any kind are placed;

(4) "Freshwater Impoundment" means an impoundment used for the retention of fresh water and into which no wastes of any kind are placed;

(5) "Horizontal drilling" means a method of drilling a well for the production of natural gas or the injection or placement of any fluid or gas, not otherwise prohibited by law or rule, including carbon dioxide, to enhance recovery of oil and natural gas that is intended to maximize the length of wellbore that is exposed to the formation and in which the wellbore is initially vertical but is eventually curved to become horizontal, or nearly horizontal, to parallel a particular geologic formation;

(6) "Horizontal well" means any well site, other than a coalbed methane well, drilled using a horizontal drilling method, and which disturbs three acres or more of surface, excluding pipelines, gathering lines and roads, or utilizes more than two hundred ten thousand gallons of water in any thirty day period for the production of natural gas, including injection or placement of any fluid or gas, not otherwise prohibited by law or rule, including carbon dioxide, to enhance recovery of oil and natural gas;

(7) "Impoundment" means a man-made excavation or diked area for the retention of fluids;

(8) "Karst terrain" means a terrain, generally underlain by limestone or dolomite, in which the topography is formed chiefly by the dissolving of rock, and which may be characterized by sinkholes, sinking streams, closed depressions, subterranean drainage and caves;

(9) "Perennial stream" means a stream or portion of a stream that flows year-round, is considered a permanent stream and for which base flow is maintained by ground-water discharge to the streambed due to the ground-water elevation adjacent to the stream being higher than the elevation of the streambed;

(10) "Pit" means a man-made excavation or diked area that contains or is intended to contain an accumulation of process waste fluids, drill cuttings or any other liquid substance generated in the development of a horizontal well and which could impact surface or groundwater;

(11) "Secretary" means the Secretary of the Department of Environmental Protection as established in article one of this chapter or other person to whom the secretary has delegated authority or duties pursuant to sections six or eight, article one of this chapter;

(12) "Water purveyor" means any person engaged in the business of selling water to another and who is regulated by the Bureau for Public Health pursuant to title sixty-four, series three of the West Virginia Code of State Rules; and

(13) "Well work" means the drilling, redrilling, deepening, stimulating, pressuring by injection or placement of any fluid or gas, not otherwise prohibited by law or rule, including carbon dioxide, converting from one type of well to another, combining or physically changing to allow the migration of fluid from one formation to another or plugging or replugging of any well.

§22-6A-5. Application of article six of this chapter to horizontal wells subject to this article.

(a) To the extent that horizontal wells governed by this article are similar to conventional oil and gas wells regulated under article six of this chapter, the following sections of article six of this chapter are hereby incorporated by reference in this article:

(1) The provisions of §22-6-3 of this code relating to the findings and orders of inspectors concerning violations, the determination of reasonable time for abatement, extensions of time for abatement, special inspections and notice of findings and orders;

(2) The provisions of §22-6-4 of this code providing for the review of findings and orders by the secretary, special inspections and applications for annulment or revision of orders by the secretary;

(3) The provisions of §22-6-5 of this code relating to the requirements for findings, orders and notices, notice to the operator of findings and orders and judicial review of final orders of the secretary;

(4) The provisions of §22-6-7 of this code relating to the issuance of water pollution control permits, the powers and duties of the secretary related thereto and penalties for violations of the same;

(5) The provisions of §22-6-8 of this code of this chapter relating to the prohibition of permits for wells on flat well royalty leases and requirements for permits;

(6) The provisions of §22-6-12 of this code pertaining to plats prerequisite to drilling or fracturing wells, the preparation and contents thereof, notice furnished to coal operators, owners or lessees, the issuance of permits and required performance bonds, with the following exceptions:

(A) Under subsection (a), §22-6-12 of this code, the plat also shall identify all surface tract boundaries within the scope of the plat proposed to be crossed by the horizontal lateral of the horizontal well and the proposed path of such horizontal lateral, and

(B) Under subsection (b), §22-6-12 of this code, any reference to a time period shall be thirty days in lieu of fifteen days;

(7) The provisions of §22-6-13 of this code providing for notice of the operator's intention to fracture wells, with the exception that under the third paragraph of §22-6-13 of this code, the applicable periods shall be thirty days in lieu of fifteen days;

(8) The provisions of §22-6-14 of this code providing requirements related only to the introduction of liquids for the purposes for enhanced recovery, with the exception that the type of wells used for enhanced recovery referenced in §22-6-14(a) of this code shall also include the introduction of fluids or gases, not otherwise prohibited by law or rule, including carbon dioxide, for the purposes provided for in §22-6-25 of this code;

(9) The provisions of §22-6-15 of this code pertaining to objections to proposed deep well drilling sites above seam or seams of coal, with the exception that the applicable time for filing objections is within thirty days of receipt by the secretary of the required plat and/or notice in lieu of fifteen days;

(10) The provisions of §22-6-16 of this code pertaining to the process of issuing permits related only to the introduction of liquids or waste for the purposes for enhanced recovery, with the exception that the type of wells used for enhanced recovery referenced in §22-6-16 of this code shall also include the introduction of fluids or gases, not otherwise prohibited by law or rule, including carbon dioxide, for the purposes provided for in §22-6-25 of this code;

(11) The provisions of §22-6-17 of this code pertaining to drilling of shallow gas wells, notice to be provided to the chair of the review board, orders issued by the review board and permits issued for such drilling, with the exception that the applicable time for filing objections is thirty days from the date of receipt by the secretary of the required plat and notice in lieu of fifteen days;

(12) The provisions of §22-6-18 of this code providing for protective devices for when a well penetrates one or more workable coal beds and when gas is found beneath or between workable coal beds;

(13) The provisions of §22-6-19 of this code providing for protective devices during the life of the well and for dry or abandoned wells;

(14) The provisions of §22-6-20 of this code providing for protective devices when a well is drilled through the horizon of a coalbed from which the coal has been removed;

(15) The provisions of §22-6-21 of this code requiring the installation of fresh water casings;

(16) The provisions of §22-6-22 of this code relating to the filing of a well completion log and the contents thereof, confidentiality and permitted use and the secretary's authority to promulgate rules;

(17) The provisions of §22-6-25 of this code regarding the introduction of liquid pressure into producing strata to recover oil contained therein, with the exception that (i) the purposes of wells set forth in §22-6-25 of this code may also be for introducing fluid or gaseous pressure, including carbon dioxide, and (ii) the substance that is the subject of recovery also includes natural gas;

(18) The provisions of §22-6-27 of this code regarding a cause of action for damages caused by an explosion;

(19) The provisions of §22-6-28 of this code of this chapter relating to supervision by the secretary over drilling and reclamation operations, the filing of complaints, hearings on the same and appeals;

(20) The provisions of §22-6-29 of this code providing for the Operating Permit and Processing Fund, the oil and gas reclamation fund and associated fees, with the exception that in the first paragraph of subsection (a), §22-6-29 of this code, the fees to be credited to the Oil and Gas Operating Permit and Processing Fund are the permit fees collected pursuant to section seven of this article;

(21) The provisions of §22-6-31 of this code providing for preventing waste of gas, plans of operation for wasting gas in the process of producing oil and the secretary's rejection thereof;

(22) The provisions of §22-6-32 of this code pertaining to the right of an adjacent owner or operator to prevent waste of gas and the recovery of costs;

(23) The provisions of §22-6-33 of this code relating to circuit court actions to restrain waste;

(24) The provisions of §22-6-36 of this code providing for the declaration of oil and gas notice by owners and lessees of coal seams and setting out the form of such notice;

(25) The provisions of §22-6-39 of this code relating to petitions for injunctive relief; and

(26) The provisions of §22-6-40 of this code of this chapter relating to appeals from orders issuing or refusing to issue a permit to drill or fracture, and the procedure therefore.

(b) Notwithstanding any other provision of this code to the contrary, no provision of article six of this chapter shall apply to horizontal wells subject to this article except as expressly incorporated by reference in this article. Any conflict between the provisions of article six and the provisions of this article shall be resolved in favor of this article.

§22-6A-6. Secretary of Department of Environmental Protection; powers and duties.

(a) The secretary is vested with jurisdiction over all aspects of this article, including, but not limited to, the following powers and duties:

(1) All powers and duties conferred upon the secretary pursuant to article six, chapter twenty-two of this code;

(2) To control and exercise regulatory authority over all gas operations regulated by this article;

(3) To utilize any oil and gas inspectors or other employees of the department in the enforcement of the provisions of this article;

(4) To propose any necessary legislative rules, in accordance with the provisions of §29A-1-1 et seq. of this code to implement the provisions of this article;

(5) To make investigations and inspections necessary to ensure compliance with the provisions of this article;

(b) Except for the duties and obligations conferred by statute upon the shallow gas well review board pursuant to §22C-8-1 et seq. of this code, the coalbed methane review board pursuant to §22-21-1 et seq. of this code, and the oil and gas conservation commission pursuant to §22C-9-1 et seq. of this code, the secretary has sole and exclusive authority to regulate the permitting, location, spacing, drilling, fracturing, stimulation, well completion activities, operation, enhanced recovery, any and all other drilling and production processes, plugging and reclamation of oil and gas wells and production operations within the state.

(c) The secretary shall, on a monthly basis, make a written report to the Governor disclosing, for all well work permits issued in a particular month, the average number of days elapsed between the date on which a complete application for a well work permit was filed and the date on which such well work permit was issued. This report shall be posted to the website required to be established and maintained pursuant to section twenty-one of this article.

§22-6A-7. Horizontal well permit required; permit fee; application; soil erosion control   plan; well site safety plan; site construction plan; water management plan; permit fee; installation of permit number; suspension and transfer of a permit.

(a) It is unlawful for any person to commence any well work, including site preparation work which involves any disturbance of land, for a horizontal well without first securing from the secretary a well work permit pursuant to this article.

(b) Every permit application filed under this section shall be on a form as may be prescribed by the secretary, shall be verified, and shall contain the following information:

(1) The names and addresses of: (A) The well operator; (B) the agent required to be designated under subsection (k) of this section; and (C) every person whom the applicant shall notify under any section of this article, together with a certification and evidence that a copy of the application and all other required documentation has been delivered to all such persons;

(2) The names and addresses of every coal operator operating coal seams under the tract of land on which the well is or may be located, and the coal seam owner of record and lessee of record required to be given notice by §22-6A-5(a)(6) of this code, if any, if the owner or lessee is not yet operating the coal seams;

(3) The number of the well or other identification the secretary may require;

(4) The well work for which a permit is requested;

(5) The approximate total depth to which the well is to be drilled or deepened, or the actual depth if the well has been drilled; the proposed angle and direction of the well; the actual depth or the approximate depth at which the well to be drilled deviates from vertical, the angle, and direction of the nonvertical well bore until the well reaches its total target depth or its actual final depth; and the length and direction of any actual or proposed horizontal lateral or well bore;

(6) Each formation in which the well will be completed if applicable;

(7) A description of any means used to stimulate the well;

(8) If the proposed well work will require casing or tubing to be set, the entire casing program for the well, including the size of each string of pipe, the starting point and depth to which each string is to be set and the extent to which each such string is to be cemented;

(9) If the proposed well work is to convert an existing well, all information required by this section, all formations from which production is anticipated, and any plans to plug any portion of the well;

(10) If the proposed well work is to plug or replug the well, all information necessary to demonstrate compliance with the legislative rules promulgated by the secretary in accordance with §22-6A-13 of this code;

(11) If the proposed well work is to stimulate a horizontal well, all information necessary to demonstrate compliance with the requirements of §22-6A-5(a)(7) of this code;

(12) The erosion and sediment control plan required under subsection (c) of this section for applications for permits to drill;

(13) A well site safety plan to address proper safety measures to be employed for the protection of persons on the site as well as the general public. The plan shall encompass all aspects of the operation, including the actual well work for which the permit was obtained, completion activities and production activities, and shall provide an emergency point of contact for the well operator. The well operator shall provide a copy of the well site safety plan to the local emergency planning committee established pursuant to §15-5A-7 of this code for the emergency planning district in which the well work will occur at least seven days before commencement of well work or site preparation work that involves any disturbance of land;

(14) A certification from the operator that: (A) It has provided the owners of the surface described in §22-6A-10(b)(1), §22-6A-10(b)(2), and §22-6A-10(b)(4) of this code, the information required by §22-6A-16(b) and §22-6A-16(c) of this code; (B) that the requirement was deemed satisfied as a result of giving the surface owner notice of entry to survey pursuant to §22-6A-10(a) of this code; or (C) the notice requirements of §22-6A-16(b) of this code were waived in writing by the surface owner; and

(15) Any other relevant information which the secretary may reasonably require.

(c)(1) An erosion and sediment control plan shall accompany each application for a well work permit under this article. The plan shall contain methods of stabilization and drainage, including a map of the project area indicating the amount of acreage disturbed. The erosion and sediment control plan shall meet the minimum requirements of the West Virginia Erosion and Sediment Control Manual as adopted and from time to time amended by the department. The erosion and sediment control plan shall become part of the terms and conditions of any well work permit that is issued pursuant to this article and the provisions of the plan shall be carried out where applicable in the operation. The erosion and sediment control plan shall set out the proposed method of reclamation which shall comply with the requirements of §22-6A-14 of this code.

(2) For well sites that disturb three acres or more of surface, excluding pipelines, gathering lines and roads, the erosion and sediment control plan submitted in accordance with this section shall be certified by a registered professional engineer.

(d) For well sites that disturb three acres or more of surface, excluding pipelines, gathering lines and roads, the operator shall submit a site construction plan that shall be certified by a registered professional engineer and contains information that the secretary may require by rule.

(e) In addition to the other requirements of this section, if the drilling, fracturing, or stimulating of the horizontal well requires the use of water obtained by withdrawals from waters of this state in amounts that exceed 210,000 gallons during any 30-day period, the application for a well work permit shall include a water management plan, which may be submitted on an individual well basis or on a watershed basis, and which shall include the following information:

(1) The type of water source, such as surface or groundwater, the county of each source to be used by the operation for water withdrawals and the latitude and longitude of each anticipated withdrawal location;

(2) The anticipated volume of each water withdrawal;

(3) The anticipated months when water withdrawals will be made;

(4) The planned management and disposition of wastewater after completion from fracturing, refracturing, stimulation, and production activities;

(5) A listing of the anticipated additives that may be used in water utilized for fracturing or stimulating the well. Upon well completion, a listing of the additives that were actually used in the fracturing or stimulating of the well shall be submitted as part of the completion log or report required by §22-6A-5(a)(14) of this code;

(6) For all surface water withdrawals, a water management plan that includes the information requested in subdivisions (1) through (5) of this subsection and the following:

(A) Identification of the current designated and existing water uses, including any public water intakes within one mile downstream of the withdrawal location;

(B) For surface waters, a demonstration, using methods acceptable to the secretary, that sufficient in-stream flow will be available immediately downstream of the point of withdrawal. A sufficient in-stream flow is maintained when a pass-by flow that is protective of the identified use of the stream is preserved immediately downstream of the point of withdrawal; and

(C) Methods to be used for surface water withdrawal to minimize adverse impact to aquatic life; and

(7) This subsection is intended to be consistent with and does not supersede, revise, repeal, or otherwise modify §22-11-1 et seq., §22-12-1 et seq., or §22-26-1 et seq. of this code and does not revise, repeal, or otherwise modify the common law doctrine of riparian rights in West Virginia law.

(f) An application may propose and a permit may approve two or more activities defined as well work; however, a separate permit shall be obtained for each horizontal well drilled.

(g) The application for a permit under this section shall be accompanied by the applicable bond as required by §22-6A-15 of this code, the applicable plat required by §22-6A-5(a)(6) of this code, and a permit fee of $10,000 for the initial horizontal well drilled at a location and a permit fee of $5,000 for each additional horizontal well drilled on a single well pad at the same location.

(h)(1) An applicant may enter into an expedited permit application process with the secretary for a well permit and pay an additional expedited permit fee of $20,000 for the initial horizontal well drilled at a location and an additional expedited permit fee of $10,000 for each additional horizontal well drilled on a single well pad at the same location: Provided, That deep well permitting is excluded from this expedited permit process due to the independent board review and approval requirement which is outside the secretary's control.

(2) Upon entering into an expedited permit process and meeting all the criteria set forth in this article, the secretary shall issue or deny a permit within 45 days of the submission of a permit application under this article, unless the secretary seeks additional information or modification from the applicant, which would toll the 45 day period until the secretary receives the required responsive information from the applicant.

(3) Each day the agency exceeds: (A) The 45-day deadline for approval or denial of an expedited initial horizontal well drilled, the secretary shall refund $1,333.33 per day up to and including day 60 after the submission of a permit application until the expedited fee is reduced to the normal permit fee amount; or (B) the 45-day deadline for approval or denial of an expedited permit for any additional horizontal well drilled on a single well pad at the same location, the secretary shall be required to refund $666.66 per day up to and including day 60 after the submission of a permit application, until the expedited fee is reduced to the normal permit fee amount.

(4)(A) After all refunds are paid by the secretary, one half of the additional expedited permit fee shall be deposited in the Oil and Gas Operating Permit and Processing Fund and shall be used by the agency to cover costs to review, process, and approve or deny the applicable horizontal well permit applications and modifications pending before the agency.

(B) After all refunds are paid by the secretary, one half of the additional expedited permit fee shall be deposited in the Oil and Gas Reclamation Fund and used specifically for the reclamation and plugging of orphaned oil or gas wells.

(i)(1) An applicant may enter into an expedited permit modification application process with the secretary for a well permit and pay an additional expedited permit modification fee of $5,000 for the modification of the permit for any horizontal well drilled at a location: Provided, That deep well permit modifications are excluded from this expedited permit modification process if the modification is subject to independent board review and approval.

(2) Upon entering into an expedited permit modification process and meeting all the criteria set forth in this article, the secretary shall issue or deny a permit modification within 20 days of the submission of a permit modification application under this article, unless the secretary seeks additional information or further modification from the applicant, which would toll the 20 day period until the secretary receives the required responsive information from the applicant.

(3) Each day the agency exceeds the 20-day deadline for approval or denial of an expedited horizontal well permit modification, the secretary shall refund $500 per day up to and including day 30 after the submission of an expedited permit modification application, until the expedited permit modification fee of $5,000 is reduced to zero.

(4)(A) After all refunds are paid by the secretary, one half of the expedited permit modification fee shall be deposited in the Oil and Gas Operating Permit and Processing Fund and shall be used by the agency to cover costs to review, process, and approve or deny the applicable horizontal well permit applications and modifications pending before the agency.

(B) After all refunds are paid by the secretary, one half of the expedited permit modification fee shall be deposited in the Oil and Gas Reclamation Fund and used specifically for the reclamation and plugging of orphaned oil or gas wells.

(j) Any balance in the Oil and Gas Reclamation Fund, earmarked specifically for the reclamation and plugging of orphaned oil or gas wells pursuant to §22-6A-7(h)(4)(B) and §22-6A-7(i)(4)(B) of this code, which remains at the end of any state fiscal year does not revert to the General Revenue Fund but shall remain in the special revenue account as indicated and may be used only as provided in §22-6-29(b) of this code. The revenues deposited in the Oil and Gas Reclamation Fund, earmarked specifically for the reclamation and plugging of orphaned oil or gas wells pursuant to §22-6A-7(h)(4)(B) and §22-6A-7(i)(4)(B) of this code may not be designated as nonaligned state special revenue funds under §11B-2-32 of this code.

(k) The well operator named in the application shall designate the name and address of an agent for the operator who is the attorney-in-fact for the operator and who is a resident of the State of West Virginia upon whom notices, orders, or other communications issued pursuant to this article or §22-11-1 et seq. of this code may be served, and upon whom process may be served. Every well operator required to designate an agent under this section shall, within five days after the termination of the designation, notify the secretary of the termination and designate a new agent.

(l) The well owner or operator shall install the permit number as issued by the secretary and a contact telephone number for the operator in a legible and permanent manner to the well upon completion of any permitted work. The dimensions, specifications, and manner of installation shall be in accordance with the rules of the secretary.

(m) The secretary may waive the requirements of this section and §22-6A-8, §22-6A-10, §22-6A-11, and §22-6A-24 of this code in any emergency situation if the secretary considers the action necessary. In that case the secretary may issue an emergency permit which is effective for not more than 30 days, unless reissued by the secretary.

(n) The secretary shall deny the issuance of a permit if the secretary determines that the applicant has committed a substantial violation of a previously issued permit for a horizontal well, including the applicable erosion and sediment control plan associated with the previously issued permit, or a substantial violation of one or more of the rules promulgated under this article, and in each instance has failed to abate or seek review of the violation within the time prescribed by the secretary pursuant to the provisions of §22-6A-5(a)(1) and §22-6A-5(a)(2) of this code and the rules promulgated hereunder, which time may not be unreasonable.

(o) If the secretary finds that a substantial violation has occurred and that the operator has failed to abate or seek review of the violation in the time prescribed, the secretary may suspend the permit on which the violation exists, after which suspension the operator shall forthwith cease all well work being conducted under the permit. However, the secretary may reinstate the permit without further notice, at which time the well work may be continued. The secretary shall make written findings of the suspension and may enforce the same in the circuit courts of this state. The operator may appeal a suspension pursuant to the provisions of §22-6A-5(a)(23) of this code. The secretary shall make a written finding of any such determination.

(p) Any well work permit issued in accordance with this section may be transferred with the prior written approval of the secretary upon his or her finding that the proposed transferee meets all requirements for holding a well work permit, notwithstanding any other provision of this article or rule adopted pursuant to this article. Application for the transfer of any well work permit shall be upon forms prescribed by the secretary and submitted with a permit transfer fee of $500. Within 90 days of the receipt of approval by the secretary, the transferee shall give notice of the transfer to those persons entitled to notice in §22-6A-10(b) of this code by personal service or by registered mail or by any method of delivery that requires a receipt or signature confirmation, and shall further update the emergency point of contact provided pursuant to §22-6A-7(b)(13).

§22-6A-8. Review of application; issuance of permit; performance standards; copy of permits to county assessor.

(a) The secretary shall review each application for a well work permit and shall determine whether or not a permit is issued.

(b) No permit may be issued less than thirty days after the filing date of the application for any well work except plugging or replugging; and no permit for plugging or replugging may be issued less than five days after the filing date of the application except a permit for plugging or replugging a dry hole: Provided, That if the applicant certifies that all persons entitled to notice of the application under the provisions of subsection (b), section ten of this article have been served in person or by certified mail, return receipt requested, with a copy of the well work application, including the erosion and sediment control plan, if required, and the well plat, and further files written statements of no objection by all such persons, the secretary may issue the well work permit at any time.

(c) Prior to the issuance of any permit, the secretary shall ascertain from the Executive Director of Workforce West Virginia and the Insurance Commissioner whether the applicant is in default pursuant to the provisions of section six-c, article two, chapter twenty-one-a of this code, and in compliance with section five, article two, chapter twenty-three of this code, with regard to any required subscription to the Unemployment Compensation Fund or mandatory Workers' Compensation insurance, the payment of premiums and other charges to the fund, the timely filing of payroll reports and the maintenance of adequate deposits. If the applicant is delinquent or defaulted, or has been terminated by the executive director or the Insurance Commissioner, the permit may not be issued until the applicant returns to compliance or is restored by the executive director or the Insurance Commissioner under a reinstatement agreement: Provided, That in all inquiries the Executive Director of Workforce West Virginia and the Insurance Commissioner shall make response to the Department of Environmental Protection within fifteen calendar days; otherwise, failure to respond timely is considered to indicate the applicant is in compliance and the failure will not be used to preclude issuance of the permit.

(d) The secretary may cause such inspections to be made of the proposed well work location as necessary to assure adequate review of the application. The permit may not be issued, or may be conditioned including conditions with respect to the location of the well and access roads prior to issuance if the director determines that:

(1) The proposed well work will constitute a hazard to the safety of persons;

(2) The plan for soil erosion and sediment control is not adequate or effective;

(3) Damage would occur to publicly owned lands or resources; or

(4) The proposed well work fails to protect fresh water sources or supplies.

(e) In addition to the considerations set forth in subsection (d) of this section, in determining whether a permit should be issued, issued with conditions, or denied, the secretary shall determine that:

(1) The well location restrictions of section twelve of this article have been satisfied, unless the requirements have been waived by written consent of the surface owner or the secretary has granted a variance to the restrictions, each in accordance with section twelve of this article;

(2) The water management plan submitted to the secretary, if required by subdivision (e), section seven of this article, has been received and approved.

(f) The secretary shall promptly review all written comments filed by persons entitled to notice pursuant to subsection (b), section ten of this article. If after review of the application and all written comments received from persons entitled to notice pursuant to subsection (b), section ten of this article, the application for a well work permit is approved, and no timely objection has been filed with the secretary by the coal operator operating coal seams beneath the tract of land, or the coal seam owner or lessee, if any, if said owner or lessee is not yet operating said coal seams, or made by the secretary under the provisions of section ten and eleven of this article, the permit shall be issued, with conditions, if any. This section does not supersede the provisions of section seven or subdivisions (6) through (9), subsection (a), section five of this article.

(g) Each permit issued by the secretary pursuant to this article shall require the operator at a minimum to:

(1) Plug all wells in accordance with the requirements of this article and the rules promulgated pursuant thereto when the wells become abandoned;

(2) With respect to disposal of cuttings at the well site, all drill cuttings and associated drilling mud generated from horizontal well sites shall be disposed of in an approved solid waste facility, or if the surface owner consents, the drill cuttings and associated drilling mud may be managed on-site in a manner approved by the secretary;

(3) Grade, terrace and plant, seed or sod the area disturbed that is not required in production of the horizontal well where necessary to bind the soil and prevent substantial erosion and sedimentation;

(4) Take action in accordance with industry standards to minimize fire hazards and other conditions which constitute a hazard to health and safety of the public;

(5) Protect the quantity and the quality of water in surface and groundwater systems both during and after drilling operations and during reclamation by: (A) Withdrawing water from surface waters of the state by methods deemed appropriate by the secretary, so as to maintain sufficient in-steam flow immediately downstream of the withdrawal location. In no case shall an operator withdraw water from ground or surface waters at volumes beyond which the waters can sustain; (B) Casing, sealing or otherwise managing wells to keep returned fluids from entering ground and surface waters; (C) Conducting oil and gas operations so as to prevent, to the extent possible using the best management practices, additional contributions of suspended or dissolved solids to streamflow or runoff outside the permit area, but in no event shall the contributions be in excess of requirements set by applicable state or federal law; and (D) Registering all water supply wells drilled and operated by the operator with the Office of Oil and Gas. All drinking water wells within one thousand five hundred feet of a water supply well shall be flow and quality tested by the operator upon request of the drinking well owner prior to operating the water supply well. The secretary shall propose legislative rules to identify appropriate methods for testing water flow and quality.

(6) In addition to the other requirements of this subsection, an operator proposing to drill any horizontal well requiring the withdrawal of more than two hundred ten thousand gallons in a thirty day period shall have the following requirements added to its permit:

(A) Identification of water withdrawal locations. Within forty-eight hours prior to the withdrawal of water, the operator shall identify to the department the location of withdrawal by latitude and longitude and verify that sufficient flow exists to protect designated uses of the stream. The operator shall use methods deemed appropriate by the secretary to determine if sufficient flow exists to protect designated uses of the stream.

(B) Signage for water withdrawal locations. All water withdrawal locations and facilities identified in the water management plan shall be identified with a sign that identifies that the location is a water withdrawal point, the name and telephone number of the operator and the permit numbers(s) for which the water withdrawn will be utilized.

(C) Recordkeeping and reporting. For all water used for hydraulic fracturing of horizontal wells and for flowback water from hydraulic fracturing activities and produced water from production activities from horizontal wells, an operator shall comply with the following record keeping and reporting requirements:

(i) For production activities, the following information shall be recorded and retained by the well operator:

(I) The quantity of flowback water from hydraulic fracturing the well;

(II) The quantity of produced water from the well; and

(III) The method of management or disposal of the flowback and produced water.

(ii) For transportation activities, the following information shall be recorded and maintained by the operator:

(I) The quantity of water transported;

(II) The collection and delivery or disposal locations of water; and

(III) The name of the water hauling company.

(iii) The information maintained pursuant to this subdivision shall be available for inspection by the department along with other required permits and records and maintained for three years after the water withdrawal activity.

(iv) This subdivision is intended to be consistent with and does not supersede, revise, repeal or otherwise modify articles eleven, twelve or twenty-six of this chapter and does not revise, repeal or otherwise modify the common law doctrine of riparian rights in West Virginia law.

(h) The secretary shall mail a copy of the permit as issued or a copy of the order denying a permit to any person entitled to submit written comments pursuant to subsection (a), section eleven of this article and who requested a copy.

(i) Upon the issuance of any permit pursuant to the provisions of this article, the secretary shall transmit a copy of the permit to the office of the assessor for the county in which the well is located.

§22-6A-9. Certificate of approval required for large pits or impoundment construction; certificate of approval and annual registration fees; application required to obtain certificate; term of certificate; revocation or suspension of certificates; appeals; farm ponds.

(a) The Legislature finds that large impoundments and pits (i.e. impoundments or pits with a capacity of two hundred ten thousand gallons or more) not associated with a specific well work permit must be properly regulated and controlled. It is the intent of the Legislature by this section to provide for the regulation and supervision of large impoundments or pits not associated with a well work permit. This section does not apply to large pits or impoundments authorized under a well work permit.

(b) It is unlawful for any person to place, construct, enlarge, alter, repair, remove or abandon any freshwater impoundment or pit with capacity of two hundred ten thousand gallons or more used in association with any horizontal well operation until he or she has first secured from the secretary a certificate of approval for the same: Provided, That routine repairs that do not affect the safety of the impoundment are not subject to the application and approval requirements. A separate application for a certificate of approval shall be submitted by a person for each impoundment he or she desires to place, construct, enlarge, alter, repair, remove or abandon, but one application may be valid for more than one impoundment that supports one or more well pads.

(c) The application fee for placement, construction, enlargement, alteration, repair or removal of an impoundment pursuant to this section is $300, and the fee shall accompany the application for certificate of approval. Operators holding certificates of approval shall be assessed an annual registration fee of $100, which is valid for more than one impoundment that supports one or more well pads.

(d) Any certificate of approval required by this section shall be issued or denied no later than sixty days from the submission of an application containing the information required by this section. However, if the application for a certificate of approval is submitted with the application for a horizontal well permit, the certificate shall be issued or denied no later than thirty days from the submission of the permit application.

(e) The initial term of a certificate of approval issued pursuant to this section is one year. Existing certificates of approval shall be extended for one year upon receipt of the annual registration fee, an inspection report, a monitoring and emergency action plan, and a maintenance plan: Provided, That where an approved, up-to-date inspection report, monitoring and emergency action plan, and maintenance plan are on file with the department, and where no outstanding violation of the requirements of the certificate of approval or any plan submitted pursuant to this article related to the impoundment exist, then the certificate of approval shall be extended without resubmission of the foregoing documents upon receipt of the annual registration fee.

(f) Every application for a certificate of approval shall be made in writing on a form prescribed by the secretary and shall be signed and verified by the applicant. The application shall include a monitoring and emergency action plan and a maintenance plan, the required contents of which shall be established by the secretary by legislative rule. The application shall contain and provide information that may reasonably be required by the secretary to administer the provisions of this article.

(g) Plans and specifications for the placement, construction, erosion and sediment control, enlargement, alteration, repair or removal and reclamation of impoundments shall be the charge of a registered professional engineer licensed to practice in West Virginia. Any plans or specifications submitted to the department shall bear the seal of a registered professional engineer.

(h) Each certificate of approval issued by the secretary pursuant to the provisions of this article may contain other terms and conditions the secretary prescribes.

(i) The secretary may revoke or suspend any certificate of approval whenever the secretary determines that the impoundment for which the certificate was issued constitutes an imminent danger to human life or property. If necessary to safeguard human life or property, the secretary may also amend the terms and conditions of any certificate by issuing a new certificate containing the revised terms and conditions.

(1) Before any certificate of approval is amended, suspended or revoked by the secretary without the consent of the operator holding the certificate, the secretary shall hold a hearing in accordance with the provisions of article five, chapter twenty-nine-a of this code.

(2) Any person adversely affected by an order entered following this hearing has the right to appeal to the Environmental Quality Board pursuant to the provisions of article one, chapter twenty-two-b of this code.

(j) Upon expiration of the certificate of approval, the operator shall within six months, or upon its revocation by the secretary, the operator shall within sixty days, fill all impoundments that are not required or allowed by state or federal law or rule or agreement between the operator and the surface owner allowing the impoundment to remain open for the use and benefit of the surface owner and reclaim the site in accordance with the approved erosion and sediment control plan.

(k) This section does not apply to:

(1) Farm ponds constructed by the operator with the written consent of the surface owner, which will be used after completion of the drilling activity primarily for agricultural purposes, including without limitation livestock watering, irrigation, retention of animal wastes and fish culture. Any impoundment that is intended to be left permanent as a farm pond under this subdivision shall meet the requirements set forth by the United States Department of Agriculture's Natural Resources Conservation Service "Conservation Practice Standard - Ponds" (Code 378).

(2) Farm ponds subject to certificates of approval under article fourteen of this chapter.

(l) The secretary is authorized to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, necessary to effectuate the provisions of this section.

§22-6A-10. Notice to property owners.

(a) Prior to filing a permit application, the operator shall provide notice of planned entry on to the surface tract to conduct any plat surveys required pursuant to this article. Such notice shall be provided at least seven days but no more than forty-five days prior to such entry to: (1) The surface owner of such tract; (2) to any owner or lessee of coal seams beneath such tract that has filed a declaration pursuant to section thirty-six, article six, chapter twenty-two of this code; and (3) any owner of minerals underlying such tract in the county tax records. The notice shall include a statement that copies of the state Erosion and Sediment Control Manual and the statutes and rules related to oil and gas exploration and production may be obtained from the Secretary, which statement shall include contact information, including the address for a web page on the Secretary's website, to enable the surface owner to obtain copies from the secretary.

(b) No later than the filing date of the application, the applicant for a permit for any well work or for a certificate of approval for the construction of an impoundment or pit as required by this article shall deliver, by personal service or by registered mail or by any method of delivery that requires a receipt or signature confirmation, copies of the application, the erosion and sediment control plan required by section seven of this article, and the well plat to each of the following persons:

(1) The owners of record of the surface of the tract on which the well is or is proposed to be located;

(2) The owners of record of the surface tract or tracts overlying the oil and gas leasehold being developed by the proposed well work, if the surface tract is to be used for roads or other land disturbance as described in the erosion and sediment control plan submitted pursuant to subsection (c), section seven of this article;

(3) The coal owner, operator or lessee, in the event the tract of land on which the well proposed to be drilled is located is known to be underlain by one or more coal seams;

(4) The owners of record of the surface tract or tracts overlying the oil and gas leasehold being developed by the proposed well work, if the surface tract is to be used for the placement, construction, enlargement, alteration, repair, removal or abandonment of any impoundment or pit as described in section nine of this article;

(5) Any surface owner or water purveyor who is known to the applicant to have a water well, spring or water supply source located within one thousand five hundred feet of the center of the well pad which is used to provide water for consumption by humans or domestic animals; and

(6) The operator of any natural gas storage field within which the proposed well work activity is to take place.

(c)(1) If more than three tenants in common or other co-owners of interests described in subsection (b) of this section hold interests in the lands, the applicant may serve the documents required upon the person described in the records of the sheriff required to be maintained pursuant to section eight, article one, chapter eleven-a of this code.

(2) Notwithstanding any provision of this article to the contrary, notice to a lien holder is not notice to a landowner, unless the lien holder is the landowner.

(d) With respect to surface landowners identified in subsection (b) or water purveyors identified in subdivision (5), subsection (b) of this section, notification shall be made on forms and in a manner prescribed by the secretary sufficient to identify, for those persons, the rights afforded them under sections eleven and twelve of this article, and the opportunity for testing their water well.

(e) Prior to filing an application for a permit for a horizontal well under this article, the applicant shall publish in the county in which the well is located or is proposed to be located a Class II legal advertisement as described in section two, article three, chapter fifty-nine of this code, containing notice of the public website required to be established and maintained pursuant to section twenty-one of this article and language indicating the ability of the public to submit written comments on the proposed permit, with the first publication date being at least ten days prior to the filing of the permit application. The secretary shall consider, in the same manner required by subsection (f), section eight of this article and subdivision one, subsection (c), section eleven of this article, written comments submitted in response to the legal advertisement received by the secretary within thirty days following the last required publication date: Provided, That such parties submitting written comments pursuant to this subsection are not entitled to participate in the processes and proceedings that exist under sections fifteen, seventeen or forty, article six of this chapter, as applicable and incorporated into this article by section five of this article.

(f) Materials served upon persons described in subsection (b) of this section shall contain a statement of the time limits for filing written comments, who may file written comments, the name and address of the secretary for the purpose of filing the comments and obtaining additional information, and a statement that the persons may request, at the time of submitting written comments, notice of the permit decision and a list of persons qualified to test water.

(g) Any person entitled to submit written comments to the secretary pursuant to subsection (a), section eleven of this article, shall also be entitled to receive from the secretary a copy of the permit as issued or a copy of the order modifying or denying the permit if the person requests receipt of them as a part of the written comments submitted concerning the permit application.

(h) The surface owners described in subdivisions (1), (2) and (4), subsection (b) of this section, and the coal owner, operator or lessee described in subdivision (3) of that subsection is also entitled to receive notice within seven days but no less than two days before commencement that well work or site preparation work that involves any disturbance of land is expected to commence.

(i) Persons entitled to notice pursuant to subsection (b) of this section may contact the department to ascertain the names and locations of water testing laboratories in the subject area capable and qualified to test water supplies in accordance with standard accepted methods. In compiling that list of names the department shall consult with the state Bureau for Public Health and local health departments.

(j)(1) Prior to conducting any seismic activity for seismic exploration for natural gas to be extracted using horizontal drilling methods, the company or person performing the activity shall provide notice to Miss Utility of West Virginia Inc. and to all surface owners, coal owners and lessees, and natural gas storage field operators on whose property blasting, percussion or other seismic-related activities will occur.

(2) The notice shall be provided at least three days prior to commencement of the seismic activity.

(3) The notice shall also include a reclamation plan in accordance with the erosion and sediment control manual that provides for the reclamation of any areas disturbed as a result of the seismic activity, including filling of shotholes used for blasting.

(4) Nothing in this subsection decides questions as to whether seismic activity may be secured by mineral owners, surface owners or other ownership interests.

§22-6A-11. Procedure for filing written comments; procedures for considering objections and comments; issues to be considered; and newspaper notice.

(a) All persons described in subsection (b), section ten of this article may file written comments with the secretary as to the location or construction of the applicant's proposed well work within thirty days after the application is filed with the secretary.

(b) The applicant shall tender proof of and certify to the secretary that the notice requirements of section ten of this article have been completed by the applicant. The certification of notice to the person may be made by affidavit of personal service, the return receipt card or other postal receipt for certified mailing.

(c)(1) The secretary shall promptly review all written comments filed by the persons entitled to notice under subsection (b), section ten of this article. The secretary shall notify the applicant of the character of the written comments submitted no later than fifteen days after the close of the comment period.

(2) Any objections of the affected coal operators and coal seam owners and lessees shall be addressed through the processes and procedures that exist under sections fifteen, seventeen and forty, article six of this chapter, as applicable and as incorporated into this article by section five of this article. The written comments filed by the parties entitled to notice under subdivisions (1), (2), (4), (5) and (6), subsection (b), section ten of this article shall be considered by the secretary in the permit issuance process, but the parties are not entitled to participate in the processes and proceedings that exist under sections fifteen, seventeen or forty, article six of this chapter, as applicable and as incorporated into this article by section five of this article.

(3) The secretary shall retain all applications, plats and other documents filed with the secretary, any proposed revisions thereto, all notices given and proof of service thereof and all orders issued and all permits issued. Subject to the provisions of article one, chapter twenty-nine-b of this code, the record prepared by the secretary is open to inspection by the public.

§22-6A-12. Well location restrictions.

(a) Wells may not be drilled within two hundred fifty feet measured horizontally from any existing water well or developed spring used for human or domestic animal consumption. The center of well pads may not be located within six hundred twenty-five feet of an occupied dwelling structure, or a building two thousand five hundred square feet or larger used to house or shelter dairy cattle or poultry husbandry. This limitation is applicable to those wells, developed springs, dwellings or agricultural buildings that existed on the date a notice to the surface owner of planned entry for surveying or staking as provided in section ten of this article or a notice of intent to drill a horizontal well as provided in subsection (b), section sixteen of this article was provided, whichever occurs first, and to any dwelling under construction prior to that date. This limitation may be waived by written consent of the surface owner transmitted to the department and recorded in the real property records maintained by the clerk of the county commission for the county in which such property is located. Furthermore, the well operator may be granted a variance by the secretary from these distance restrictions upon submission of a plan which identifies the sufficient measures, facilities or practices to be employed during well site construction, drilling and operations. The variance, if granted, shall include terms and conditions the department requires to ensure the safety and protection of affected persons and property. The terms and conditions may include insurance, bonding and indemnification, as well as technical requirements.

(b) No well pad may be prepared or well drilled within one hundred feet measured horizontally from any perennial stream, natural or artificial lake, pond or reservoir, or a wetland, or within three hundred feet of a naturally reproducing trout stream. No wellpad may be located within one thousand feet of a surface or ground water intake of a public water supply. The distance from the public water supply as identified by the department shall be measured as follows:

(1) For a surface water intake on a lake or reservoir, the distance shall be measured from the boundary of the lake or reservoir.

(2) For a surface water intake on a flowing stream, the distance shall be measured from a semicircular radius extending upstream of the surface water intake.

(3) For a groundwater source, the distance shall be measured from the wellhead or spring. The department may, in its discretion, waive these distance restrictions upon submission of a plan identifying sufficient measures, facilities or practices to be employed during well site construction, drilling and operations to protect the waters of the state. A waiver, if granted, shall impose any permit conditions as the secretary considers necessary.

(c) Notwithstanding the foregoing provisions of this section, nothing contained in this section prevents an operator from conducting the activities permitted or authorized by a Clean Water Act Section 404 permit or other approval from the United States Army Corps of Engineers within any waters of the state or within the restricted areas referenced in this section.

(d) The well location restrictions set forth in this section shall not apply to any well on a multiple well pad if at least one of the wells was permitted or has an application pending prior to the effective date of this article.

(e) The secretary shall, by December 31, 2012, report to the Legislature on the noise, light, dust and volatile organic compounds generated by the drilling of horizontal wells as they relate to the well location restrictions regarding occupied dwelling structures pursuant to this section. Upon a finding, if any, by the secretary that the well location restrictions regarding occupied dwelling structures are inadequate or otherwise require alteration to address the items examined in the study required by this subsection, the secretary shall have the authority to propose for promulgation legislative rules establishing guidelines and procedures regarding reasonable levels of noise, light, dust and volatile organic compounds relating to drilling horizontal wells, including reasonable means of mitigating such factors, if necessary.

§22-6A-13. Plugging of horizontal wells.

The secretary shall propose legislative rules for promulgation to govern the procedures for plugging horizontal wells, including rules relating to the methods of plugging the wells and the notices required to be provided in connection with plugging the wells.

§22-6A-14. Reclamation requirements.

(a) The operator of a horizontal well shall reclaim the land surface within the area disturbed in siting, drilling, completing or producing the well in accordance with the following requirements:

(1) Except as provided elsewhere in this article, within six months after a horizontal well is drilled and completed on a well pad designed for a single horizontal well, the operator shall fill all the pits and impoundments that are not required or allowed by state or federal law or rule or agreement between the operator and the surface owner that allows the impoundment to remain open for the use and benefit of the surface owner (i.e. a farm pond as described in section nine of this article) and remove all concrete bases, drilling supplies and drilling equipment: Provided, That impoundments or pits for which certificates have been approved pursuant to section nine of this article shall be reclaimed at a time and in a manner as provided in the applicable certificate and said section. Within that six-month period, the operator shall grade or terrace and plant, seed or sod the area disturbed that is not required in production of the horizontal well in accordance with the erosion and sediment control plan. No pit may be used for the ultimate disposal of salt water. Salt water and oil shall be periodically drained or removed and properly disposed of from any pit that is retained so the pit is kept reasonably free of salt water and oil. Pits may not be left open permanently.

(2) For well pads designed to contain multiple horizontal wells, partial reclamation shall begin upon completion of the construction of the well pad. For purposes of this section, the term “partial reclamation” means grading or terracing and planting or seeding the area disturbed that is not required in drilling, completing or producing any of the horizontal wells on the well pad in accordance with the erosion and sediment control plan. This partial reclamation satisfies the reclamation requirements of this section:  Provided, That the maximum period in which partial reclamation satisfies the reclamation requirements of this section is five years from completion of the construction of the well pad.  For purposes of this subdivision, construction of a well pad will be deemed to be complete twelve months after construction is commenced if construction of the well pad is not actually completed prior to that date.  Within six months after expiration of the five-year maximum partial reclamation period, the operator shall complete final reclamation of the well pad as set forth in this subsection.

(3) Within six months after a horizontal well that has produced oil or gas is plugged or after the plugging of a dry hole, the operator shall remove all production and storage structures, supplies and equipment and any oil, salt water and debris and fill any remaining excavations. Within that six-month period, the operator shall grade or terrace and plant, seed or sod the area disturbed where necessary to bind the soil and prevent substantial erosion and sedimentation.

(4) The operator shall reclaim the area of land disturbed in siting, drilling, completing or producing the horizontal well in accordance with the erosion and sediment control plans approved by the secretary or the secretary’s designee pursuant to this article.

(b) The secretary, upon written application by an operator showing reasonable cause, may extend the period within which reclamation must be completed, but not to exceed a further six-month period. If the secretary refuses to approve a request for extension, the refusal shall be by order, which may be appealed pursuant to the provisions of subdivision (23), subsection (a), section five of this article.

§22-6A-15. Performance bonds; corporate surety or other security.

(a) No permit may be issued pursuant to this article unless a bond as described in subsection (d) of this section which is required for a particular activity by this article is or has been furnished as provided in this section.

(b) A separate bond as described in subsection (d) of this section may be furnished for each horizontal well drilled. Each of these bonds shall be in the sum of $50,000 payable to the State of West Virginia, conditioned on full compliance with all laws, rules relating to the drilling, redrilling, deepening, casing and stimulating of horizontal wells and to the plugging, abandonment and reclamation of horizontal wells and for furnishing reports and information required by the secretary.

(c) When an operator makes or has made application for permits to drill or stimulate a number of horizontal wells, the operator may, in lieu of furnishing a separate bond, furnish a blanket bond in the sum of $250,000 payable to the State of West Virginia, and conditioned as provided in subsection (b) of this section.

(d) The form of the bond required by this article shall be approved by the secretary and may include, at the option of the operator, surety bonding, collateral bonding, including cash and securities, letters of credit, establishment of an escrow account, self-bonding or a combination of these methods. If collateral bonding is used, the operator may elect to deposit cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank, or of the homeowners' loan corporation; full faith and credit general obligation bonds of the State of West Virginia or other states or of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the department. The cash deposit or market value of the securities or certificates shall be equal to or greater than the amount of the bond. The secretary shall, upon receipt of any deposit of cash, securities or certificates, promptly place the same with the Treasurer of the State of West Virginia whose duty it is to receive and hold them in the name of the state in trust for the purpose of which the deposit is made when the permit is issued. The operator is entitled to all interest and income earned on the collateral securities filed by the operator. The operator making the deposit is entitled from time to time to receive from the State Treasurer, upon the written approval of the secretary, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with the State Treasurer in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the amount of the bond.

(e) When an operator has furnished a separate bond from a corporate bonding or surety company to drill, fracture or stimulate a horizontal well and the well produces oil or gas or both, its operator may deposit with the secretary cash from the sale of the oil or gas or both until the total deposited is $50,000. When the sum of the cash deposited is $50,000, the separate bond for the well shall be released by the secretary. Upon receipt of that cash, the secretary shall immediately deliver that amount to the State Treasurer, who shall hold the cash in the name of the state in trust for the purpose for which the bond was furnished and the deposit was made. The operator is entitled to all interest and income which may be earned on the cash deposited so long as the operator is in full compliance with all laws and rules relating to the drilling, redrilling, deepening, casing, plugging, abandonment and reclamation of the well for which the cash was deposited and so long as the operator has furnished all reports and information required by the secretary. The secretary may establish procedures under which an operator may substitute a new bond for an existing bond or provide a new bond under certain circumstances specified in a legislative rule promulgated in accordance with chapter twenty-nine-a of this code.

(f) Any separate bond furnished for a particular well prior to the effective date of this article continues to be valid for all work on the well permitted prior to the effective date of this article; but no permit may be issued on such a particular well without a bond complying with the provisions of this section. Any blanket bond furnished prior to the effective date of this article shall be replaced with a new blanket bond conforming to the requirements of this section, at which time the prior bond is discharged by operation of law; and if the secretary determines that any operator has not furnished a new blanket bond, the secretary shall notify the operator by registered mail or by any method of delivery that requires a receipt or signature confirmation of the requirement for a new blanket bond, and failure to submit a new blanket bond within sixty days after receipt of the notice from the secretary works a forfeiture under subsection (i) of this section of the blanket bond furnished prior to the effective date of this article.

(g) Any such bond shall remain in force until released by the secretary, and the secretary shall release the same upon satisfaction that the conditions thereof have been fully performed. Upon the release of that bond, any cash or collateral securities deposited shall be returned by the secretary to the operator who deposited it.

(h)(1) Whenever the right to operate a well is assigned or otherwise transferred, the assignor or transferor shall notify the department of the name and address of the assignee or transferee by registered mail or by any method of delivery that requires a receipt or signature confirmation not later than thirty days after the date of the assignment or transfer. No assignment or transfer by the owner relieves the assignor or transferor of the obligations and liabilities unless and until the assignee or transferee files with the department the well name and the permit number of the subject well, the county and district in which the subject well is located, the names and addresses of the assignor or transferor, and assignee or transferee, a copy of the instrument of assignment or transfer accompanied by the applicable bond, cash, collateral security or other forms of security described in this section, and the name and address of the assignee's or transferee's designated agent if the assignee or transferee would be required to designate an agent under this article if the assignee or transferee were an applicant for a permit under this article. Every well operator required to designate an agent under this section shall, within five days after the termination of the designation, notify the department of the termination and designate a new agent.

(2) Upon compliance with the requirements of this section by the assignor or transferor and assignee or transferee, the secretary shall release the assignor or transferor from all duties and requirements of this article and shall give written notice of release to the assignor or transferor of any bond and return to the assignor or transferor any cash or collateral securities deposited pursuant to this section.

(i) If any of the requirements of this article or rules promulgated pursuant thereto or the orders of the secretary has not been complied with within the time limit set by any notice of violation issued pursuant to this article, the performance bond shall then be forfeited.

(j) When any bond is forfeited pursuant to the provisions of this article or rules promulgated pursuant thereto, the secretary shall collect the forfeiture without delay.

(k) All forfeitures shall be deposited in the Treasury of the State of West Virginia in the Oil and Gas Reclamation Fund as defined in section twenty-nine, article six of this chapter.

§22-6A-16. Compensation of surface owners for drilling operations.

(a) The provisions of article seven of this chapter do not apply to horizontal wells governed by this article. In lieu thereof, the provisions of article six-b of this chapter shall provide for the compensation of surface owners for damage caused by drilling horizontal wells.

(b) At least ten days prior to filing a permit application, an operator shall, by certified mail return receipt requested or hand delivery, give the surface owner notice of its intent to enter upon the surface owner's land for the purpose of drilling a horizontal well: Provided, That notice given pursuant to subsection (a), section ten of this article satisfies the requirements of this subsection as of the date the notice was provided to the surface owner: Provided, however, That the notice requirements of this subsection may be waived in writing by the surface owner. The notice, if required, shall include the name, address, telephone number, and if available, facsimile number and electronic mail address of the operator and the operator's authorized representative.

(c) No later than the date for filing the permit application, an operator shall, by certified mail return receipt requested or hand delivery, give the surface owner whose land will be used for the drilling of a horizontal well notice of the planned operation. The notice required by this subsection shall include:

(1) A copy of this code section;

(2) The information required to be provided by subsection (b), section ten of this article to a surface owner whose land will be used in conjunction with the drilling of a horizontal well; and

(3) A proposed surface use and compensation agreement containing an offer of compensation for damages to the surface affected by oil and gas operations to the extent the damages are compensable under article six-b of this chapter.

(d) The notices required by this section shall be given to the surface owner at the address listed in the records of the sheriff at the time of notice.

§22-6A-17. Reimbursement of property taxes of encumbered properties.

In addition to any compensation owed by the operator to the surface owner pursuant to the provisions of article six-b of this chapter, the operator shall pay the surface owner a one-time payment of $2,500 to compensate for payment of real property taxes for surface lands and surrounding lands that are encumbered or disturbed by construction or operation of the horizontal well pad regardless of how many wells are drilled on a single pad or how many permits are issued for the pad.

§22-6A-18. Civil action for contamination or deprivation of fresh water source or supply; presumption; water rights and replacement; waiver of replacement.

(a) Nothing in this article affects in any way the rights of any person to enforce or protect, under applicable law, the person's interest in water resources affected by an oil or gas operation.

(b) Unless rebutted by one of the defenses established in subsection (c) of this section, in any action for contamination or deprivation of a fresh water source or supply within one thousand five hundred feet of the center of the well pad for horizontal well, there is a rebuttable presumption that the drilling and the oil or gas well or either was the proximate cause of the contamination or deprivation of the fresh water source or supply.

(c) In order to rebut the presumption of liability established in subsection (b) of this section, the operator must prove by a preponderance of the evidence one of the following defenses:

(1) The pollution existed prior to the drilling or alteration activity as determined by a predrilling or prealteration water well test.

(2) The landowner or water purveyor refused to allow the operator access to the property to conduct a predrilling or prealteration water well test.

(3) The water supply is not within one thousand five hundred feet of the well.

(4) The pollution occurred more than six months after completion of drilling or alteration activities.

(5) The pollution occurred as the result of some cause other than the drilling or alteration activity.

(d) Any operator electing to preserve its defenses under subdivision (1), subsection (c) of this section shall retain the services of an independent certified laboratory to conduct the predrilling or prealteration water well test. A copy of the results of the test shall be submitted to the department and the surface owner or water purveyor in a manner prescribed by the secretary.

(e) Any operator shall replace the water supply of an owner of interest in real property who obtains all or part of that owner's supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source with a comparable water supply where the secretary determines that the water supply has been affected by contamination, diminution or interruption proximately caused by the oil or gas operation, unless waived in writing by that owner.

(f) The secretary may order the operator conducting the oil or gas operation to:

(1) Provide an emergency drinking water supply within twenty-four hours;

(2) Provide temporary water supply within seventy-two hours;

(3) Within thirty days begin activities to establish a permanent water supply or submit a proposal to the secretary outlining the measures and timetables to be used in establishing a permanent supply. The total time in providing a permanent water supply may not exceed two years. If the operator demonstrates that providing a permanent replacement water supply cannot be completed within two years, the secretary may extend the time frame on case-by-case basis; and

(4) Pay all reasonable costs incurred by the real property owner in securing a water supply.

(g) A person as described in subsection (b) of this section aggrieved under the provisions of subsections (b), (e) or (f) of this section may seek relief in court.

(h) The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the requirements of this section.

(i) Notwithstanding the denial of the operator of responsibility for the damage to the real property owner's water supply or the status of any appeal on determination of liability for the damage to the real property owner's water supply, the operator may not discontinue providing the required water service until authorized to do so by the secretary or a court of competent jurisdiction.

§22-6A-19. Offenses; civil and criminal penalties.

(a) Any person or persons, firm, partnership, partnership association or corporation who willfully violates any provision of this article or any rule or order promulgated under this article or any permit issued pursuant to this article is subject to a civil penalty not exceeding $5,000. Each day a violation continues after notice by the department constitutes a separate offense. The penalty shall be recovered by a civil action brought by the department, in the name of the state, before the circuit court of the county in which the subject well or facility is located. All the civil penalties collected shall be credited to the General Fund of the state.

(b) Notwithstanding the provisions of subsection (a)and (c) of this section, any person or persons, firm, partnership, partnership association or corporation who willfully disposes of waste fluids, drill cuttings or any other liquid substance generated in the development of a horizontal well in violation of this article or any rule or order promulgated under this article or in violation of any other state or federal statutes, rules or regulations, and which disposal was found to have had a significant adverse environmental impact on surface or groundwater by the secretary, is subject to a civil penalty not exceeding $100,000. The penalty shall be recovered by a civil action brought by the department, in the name of the state, before the circuit court of the county in which the subject well or facility is located. All the civil penalties collected shall be credited to the General Fund of the state.

(c) Notwithstanding the provisions of subsections (a) and (b) of this section, any person or persons, firm, partnership, partnership association or corporation willfully violating any of the provisions of this article which prescribe the manner of drilling and casing or plugging and filling any well or which prescribe the methods of conserving gas from waste, shall be guilty of a misdemeanor, and, upon conviction thereof shall be punished by a fine not exceeding five thousand dollars, or imprisonment in jail not exceeding twelve months, or both, in the discretion of the court, and prosecution under this section may be brought in the name of the State of West Virginia in the court exercising criminal jurisdiction in the county in which the violation of such provisions of the article or terms of such order was committed, and at the instance and upon the relation of any citizens of this state.

(d) Any person who intentionally misrepresents any material fact in an application, record, report, plan or other document filed or required to be maintained under the provisions of this article or any rules promulgated by the secretary under this article shall be fined not less than $1,000 nor more than $10,000.

§22-6A-20. Division of Highways certification.

As part of the permit application for horizontal wells, the operator shall submit a letter of certification from the Division of Highways that the operator has, pursuant to the Division of Highways Oil and Gas Road Policy, entered into an agreement with the Division of Highways pertaining to the state local service roads associated with the proposed well work set forth in the permit application or has certified that no such agreement is required by the Oil and Gas Road Policy and the reasons therefor.

§22-6A-21. Establishment of public website information and electronic notification registry regarding horizontal well permit applications.

(a) No later than ninety days after the effective date of this article, the secretary shall establish resources on the department's public website which will list searchable information related to all horizontal well applications filed in this state, including information sufficient to identify the county and approximate location of each horizontal well for which a permit application is filed, the referenced well application number, date of application, name of the applicant, and any written comments submitted by the public.

(b) The secretary shall also establish a registration and e-notification process by which individuals, corporations and agencies may register to receive electronic notice of horizontal well applications filings and notices, by county of interest. Once established, individuals, agencies and corporations interested who are properly registered to receive e-notices of filings and actions on horizontal well permits shall receive electronic notifications of applications and notices of permits issued for horizontal drilling in their designated county or counties of interest.

§22-6A-22. Air quality study and rulemaking.

The secretary shall, by July 1, 2013, report to the Legislature on the need, if any, for further regulation of air pollution occurring from well sites, including the possible health impacts, the need for air quality inspections during drilling, the need for inspections of compressors, pits and impoundments, and any other potential air quality impacts that could be generated from this type of drilling activity that could harm human health or the environment. If he or she finds that specialized permit conditions are necessary, the secretary shall promulgate legislative rules establishing these new requirements.

§22-6A-23. Impoundment and pit safety study; rulemaking.

The secretary shall, by January 1, 2013, report to the Legislature on the safety of pits and impoundments utilized pursuant to section nine of this article including an evaluation of whether testing and special regulatory provision is needed for radioactivity or other toxins held in the pits and impoundments. Upon a finding that greater monitoring, safety and design requirements or other specialized permit conditions are necessary, the secretary shall propose for promulgation legislative rules establishing these new requirements.

§22-6A-24. Casing and cement standards.

(a) The operator may only drill through fresh groundwater zones in a manner that will minimize any disturbance of the zones. Further, the operator shall construct the well and conduct casing and cementing activities for all horizontal wells in a manner that will provide for control of the well at all times, prevent the migration of gas and other fluids into the fresh groundwater and coal seams, and prevent pollution of or diminution of fresh groundwater.

(b) The secretary shall propose legislative and emergency rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to carry out the purposes of this section.

(c) Rules promulgated by the secretary pursuant to this section shall include provisions to accomplish the following:

(1) Effective control of the horizontal well by the operator;

(2) Prevention of the migration of gas or other fluids into sources of fresh groundwater or into coal seams;

(3) Prevention of pollution of or diminution of fresh groundwater;

(4) Prevention of blowouts, explosions, or fires; and

(5) Appropriate disposition of brines and discharges from the drilling or operation of horizontal well.

(d) Procedures for the filing, approval, and revision of casing program:

(1) The operator shall prepare a casing program demonstrating how the horizontal well is to be drilled, cased, and cemented. The program shall comply with rules promulgated by the secretary.

(2) The rules regarding the casing program shall require the following information:

(A) The anticipated depth and thickness of any producing formation, expected pressures, anticipated fresh groundwater zones, and the method or information by which the depth of the deepest fresh groundwater was determined;

(B) The diameter of the borehole;

(C) The casing type, whether the casing to be utilized is new or used, and the depth, diameter, wall thickness, and burst pressure rating for the casing;

(D) The cement type, yield, additives, and estimated amount of cement to be used;

(E) The estimated location of centralizers;

(F) The proposed borehole conditioning procedures; and

(G) Any alternative methods or materials required by the secretary as a condition of the well work permit.

(3) A copy of casing program shall be kept at the well site.

(4) Supervisory oil and gas inspectors and oil and gas inspectors may approve revisions to previously approved casing programs when conditions encountered during the drilling process so require: Provided, That any revisions to casing programs approved by inspectors as aforesaid shall ensure that the revised casing programs are at least as protective of the environment as the casing and cementing standards required by this section. Any revisions to the casing program made as a result of on-site modifications shall be documented in the program by the inspector approving the modification. The person making any revisions to the program shall initial and date the revisions and make the revised program available for inspection by the department.

(e) The rules promulgated by the secretary shall provide procedures for the following:

(1) Appropriate installation and use of conductor pipe, which shall be installed in a manner that prevents the subsurface infiltration of surface water or fluids;

(2) Installation of the surface and coal protection casing including remedial procedures addressing lost circulation during surface or coal casing;

(3) Installation of intermediate production casing;

(4) Correction of defective casing and cementing, including requirements that the operator report the defect to the secretary within twenty-four hours of discovery by the operator;

(5) Investigation of natural gas migration, including requirements that the operator promptly notify the secretary and conduct an investigation of the incident; and

(6) Any other procedure or requirements considered necessary by the secretary.

(f) Minimum casing standards.

(1) All casing installed in the well, whether new or used, shall have a pressure rating that exceeds the anticipated maximum pressure to which the casing will be exposed and meet appropriate nationally recognized standards.

(2) The casing shall be of sufficient quality and condition to withstand the effects of tension and maintain its structural integrity during installation, cementing, and subsequent drilling and production operations.

(3) Centralizers shall be used, with the proper spacing for such well, during the casing installation to ensure that the casing is centered in the hole.

(4) Casing may not be disturbed for a period of at least eight hours after the completion of cementing operations.

(5) No gas or oil production or pressure may exist on the surface casing or the annulus or the coal protection casing annulus.

(g) Minimum cement standards.

(1) All cement used in the well must meet the appropriate nationally recognized standards and must secure the casing to the wellbore, isolate the wellbore from all fluids, contain all pressures during all phases of drilling and operation of the well, and protect the casing from corrosion and degradation.

(2) Cement used in conjunction with surface and coal protection casing must provide zonal isolation in the casing annulus.

(h) Notwithstanding the minimum casing and cementing standards set forth in subsections (f) and (g) of this section, the secretary may:

(1) Revise the casing and cementing standards applicable to horizontal wells from time to time through the legislative rulemaking process so long as the revised casing and cementing standards are at least as protective of the environment; and

(2) Approve alternative casing programs submitted with applications for well work permits so long as the secretary determines that the casing program submitted with the application is at least as protective of the environment as the casing and cementing standards required by this section.

§22-6A-3a. Karst terrain; rulemaking.

(a) Because drilling horizontal wells in naturally occurring karst terrain may require precautions not necessary in other parts of the state, the secretary may require additional safeguards to protect this geological formation. When drilling horizontal wells in naturally occurring karst terrain, such additional safeguards may include changing proposed well locations to avoid damage to water resources, special casing programs, and additional or special review of drilling procedures.

(b) In order to carry out the purposes of this section, the secretary, in consultation with the state geologist, shall propose emergency and legislative rules in accordance with the provisions of chapter twenty-nine-a of this code to establish designated geographic regions of the state where the provisions of this section are applicable and to establish standards for drilling horizontal wells in naturally occurring karst terrain. For horizontal wells drilled into naturally occurring karst terrain in such designated geographic regions, the rules shall, at a minimum:

(1) Require operators to perform certain predrilling testing to identify the location of caves and other voids, faults and relevant features in the strata and the location of surface features prevalent in naturally occurring karst terrain such as sink holes; and

(2) Provide any other requirements deemed necessary by the secretary to protect the unique characteristics of naturally occurring karst terrain, which requirements may include baseline water testing within an established distance from a drilling site.

(c) Nothing in this section allows the department to prevent drilling in naturally occurring karst terrain.

§22-6A-10a. Method of Delivery of Notice.

Notwithstanding any provision of this article to the contrary, all notices required by this article shall be delivered by the method set forth in subsection (b), section ten of this article, which notice shall provide that further information may be obtained from the department's website.

§22-6B-1. Legislative findings and purpose; applicability.

(a) The Legislature finds the following:

(1) Exploration for and development of oil and gas reserves in this state must coexist with the use, agricultural or otherwise, of the surface of certain land and that each constitutes a right equal to the other.

(2) The surface owner of lands on which horizontal wells are drilled shall be compensated for damages to the surface of the land pursuant to the provisions of this article.

(b) The Legislature declares that the public policy of this state shall be that the compensation and damages provided in this article for surface owners may not be diminished by any provision in a deed, lease or other contract of conveyance entered into after December 31, 2011.

(c) It is the purpose of this article to provide constitutionally permissible protection and compensation to surface owners of lands on which horizontal wells are drilled from the burden resulting from drilling operations commenced after January 1, 2012. This article is to be interpreted in the light of the legislative intent expressed herein. This article shall be interpreted to benefit surface owners, regardless of whether the oil and gas mineral estate was separated from the surface estate and regardless of who executed the document which gave the oil and gas developer the right to conduct drilling operations on the land. Section four of this article shall be interpreted to benefit all persons.

(d) The provisions of this article apply to any natural gas well, other than a coalbed methane well, drilled using a horizontal drilling method, and which disturbs three acres or more of surface, excluding pipelines, gathering lines and roads or uses more than two hundred ten thousand gallons of water in any thirty-day period. Article seven of this chapter does not apply to any damages associated with the drilling of a horizontal well.

§22-6B-2. Definitions.

In this article:

(1) "Drilling operations" means the actual drilling or redrilling of a horizontal well commenced subsequent to the effective date of this article, and the related preparation of the drilling site and access road, which requires entry, upon the surface estate;

(2) "Horizontal drilling" means a method of drilling a well for the production of natural gas that is intended to maximize the length of wellbore that is exposed to the formation and in which the wellbore is initially vertical but is eventually curved to become horizontal, or nearly horizontal, to parallel a particular geologic formation;

(3) "Horizontal well" means any well site, other than a coalbed methane well, drilled using a horizontal drilling method, and which disturbs three acres or more of surface, excluding pipelines, gathering lines and roads, or uses more than two hundred ten thousand gallons of water in any thirty-day period;

(4) "Oil and gas developer" means the person who secures the drilling permit required by article six-a of this chapter;

(5) "Person" means any natural person, corporation, firm, partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or agency thereof;

(6) "Surface estate" means an estate in or ownership of the surface of a particular tract of land overlying the oil or gas leasehold being developed; and

(7) "Surface owner" means a person who owns an estate in fee in the surface of land, either solely or as a co-owner.

§22-6B-3. Compensation of surface owners for drilling operations.

(a) The oil and gas developer is obligated to pay the surface owner compensation for:

(1) Lost income or expenses incurred as a result of being unable to dedicate land actually occupied by the driller's operation, or to which access is prevented by the drilling operation, to the uses to which it was dedicated prior to commencement of the activity for which a permit was obtained, measured from the date the operator enters upon the land and commences drilling operations until the date reclamation is completed;

(2) The market value of crops, including timber, destroyed, damaged or prevented from reaching market;

(3) Any damage to a water supply in use prior to the commencement of the permitted activity;

(4) The cost of repair of personal property up to the value of replacement by personal property of like age, wear and quality; and

(5) The diminution in value, if any, of the surface lands and other property after completion of the surface disturbance done pursuant to the activity for which the permit was issued determined according to the market value of the actual use made thereof by the surface owner immediately prior to the commencement of the permitted activity.

The amount of damages may be determined by any formula mutually agreeable between the surface owner and the oil and gas developer.

(b) Any reservation or assignment of the compensation provided in this section apart from the surface estate except to a tenant of the surface estate is prohibited.

(c) In the case of surface lands owned by more than one person as tenants in common, joint tenants or other co-ownership, any claim for compensation under this article shall be for the benefit of all co-owners. The resolution of a claim for compensation provided in this article operates as a bar to the assertion of additional claims under this section arising out of the same drilling operations.

§22-6B-4. Common law right of action preserved; offsets.

(a) Nothing in section three or elsewhere in this article diminishes in any way the common law remedies, including damages, of a surface owner or any other person against the oil and gas developer for the unreasonable, negligent or otherwise wrongful exercise of the contractual right, whether express or implied, to use the surface of the land for the benefit of the developer's mineral interest.

(b) An oil and gas developer is entitled to offset compensation agreed to be paid or awarded to a surface owner under section three of this article against any damages sought by or awarded to the surface owner through the assertion of common law remedies respecting the surface land actually occupied by the same drilling operation.

(c) An oil and gas developer is entitled to offset damages agreed to be paid or awarded to a surface owner through the assertion of common-law remedies against compensation sought by or awarded to the surface owner under section three of this article respecting the surface land actually occupied by the same drilling operation.

§22-6B-5. Notification of claim.

Any surface owner, to receive compensation under section three of this article, shall notify the oil and gas developer of the damages sustained by the person within two years after the date that the oil and gas developer files notice that final reclamation is commencing under section fourteen, article six-a of this chapter. The notice of reclamation shall be given to surface owners by registered or certified mail, return receipt requested, and is complete upon mailing. If more than three tenants in common or other co-owners hold interests in the lands, the oil and gas developer may give the notice to the person described in the records of the sheriff required to be maintained pursuant to section eight, article one, chapter eleven-a of this code or publish in the county in which the well is located or to be located a Class II legal advertisement as described in section two, article three, chapter fifty-nine of this code, containing the notice and information the secretary prescribes by rule.

§22-6B-6. Agreement; offer of settlement.

Unless the parties provide otherwise by written agreement, within sixty days after the oil and gas developer received the notification of claim specified in section five of this article, the oil and gas developer shall either make an offer of settlement to the surface owner seeking compensation, or reject the claim. The surface owner may accept or reject any offer so made: Provided, That the oil and gas developer may make a final offer within seventy-five days after receiving the notification of claim specified in section five of this article.

§22-6B-7. Rejection; legal action; arbitration; fees and costs.

(a)(1) Unless the oil and gas developer has paid the surface owner a negotiated settlement of compensation within seventy-five days after the date the notification of claim was mailed under section five of this article, the surface owner may, within eighty days after the notification mail date, either: (i) Bring an action for compensation in the circuit court of the county in which the well is located; or (ii) elect instead, by written notice delivered by personal service or by certified mail, return receipt requested, to the designated agent named by the oil and gas developer under the provisions of section seven, article six-a of this chapter, to have his, her or its compensation finally determined by binding arbitration pursuant to article ten, chapter fifty-five of this code.

(2) Settlement negotiations, offers and counter-offers between the surface owner and the oil and gas developer are not admissible as evidence in any arbitration or judicial proceeding authorized under this article, or in any proceeding resulting from the assertion of common law remedies.

(b) The compensation to be awarded to the surface owner shall be determined by a panel of three disinterested arbitrators. The first arbitrator shall be chosen by the surface owner in the party's notice of election under this section to the oil and gas developer; the second arbitrator shall be chosen by the oil and gas developer within ten days after receipt of the notice of election; and the third arbitrator shall be chosen jointly by the first two arbitrators within twenty days thereafter. If they are unable to agree upon the third arbitrator within twenty days, then the two arbitrators shall immediately submit the matter to the court under the provisions of section one, article ten, chapter fifty-five of this code, so that, among other things, the third arbitrator can be chosen by the judge of the circuit court of the county in which the surface estate lies.

(c) The following persons are considered interested and may not be appointed as arbitrators: Any person who is personally interested in the land on which horizontal drilling is being performed or has been performed, or in any interest or right therein, or in the compensation and any damages to be awarded therefor, or who is related by blood or marriage to any person having such personal interest, or who stands in the relation of guardian and ward, master and servant, principal and agent, or partner, real estate broker, or surety to any person having such personal interest, or who has enmity against or bias in favor of any person who has such personal interest or who is the owner of, or interested in, the land or the oil and gas development of the land. A person is not considered interested or incompetent to act as arbitrator by reason of being an inhabitant of the county, district or municipal corporation in which the land is located, or holding an interest in any other land therein.

(d) The panel of arbitrators shall hold hearings and take testimony and receive exhibits necessary to determine the amount of compensation to be paid to the surface owner. However, no award of compensation may be made to the surface owner unless the panel of arbitrators has first viewed the surface estate in question. A transcript of the evidence may be made but is not required.

(e) Each party shall pay the compensation of the party's arbitrator and one half of the compensation of the third arbitrator, or each party's own court costs as the case may be.

§22-6B-8. Application of article.

The remedies provided by this article do not preclude any person from seeking other remedies allowed by law.

§22-7-1. Legislative findings and purpose.

(a) The Legislature finds the following:

(1) Exploration for and development of oil and gas reserves in this state must coexist with the use, agricultural or otherwise, of the surface of certain land and that each constitutes a right equal to the other.

(2) Modern methods of extraction of oil and gas require the use of substantially more surface area than the methods commonly in use at the time most mineral estates in this state were severed from the fee tract; and, specifically, the drilling of wells by the rotary drilling method was virtually unknown in this state prior to the year 1960, so that no person severing their oil and gas from their surface land and no person leasing their oil and gas with the right to explore for and develop the same could reasonably have known nor could it have been reasonably contemplated that rotary drilling operations imposed a greater burden on the surface than the cable tool drilling method heretofore employed in this state; and since the year 1960, the use of rotary drilling methods has spread slowly but steadily in this state, with concomitant public awareness of its impact on surface land; and that the public interest requires that the surface owner be entitled to fair compensation for the loss of the use of surface area during the rotary drilling operation, but recognizing the right of the oil and gas operator to conduct rotary drilling operations as allowed by law.

(3) Prior to January 1, 1960, the rotary method of drilling oil or gas wells was virtually unknown to the surface owners of this state nor was such method reasonably contemplated during the negotiations which occasioned the severance of either oil or gas from the surface.

(4) The Legislature further finds and creates a rebuttable presumption that even after December 31, 1959, and prior to June 9, 1983, it was unlikely that any surface owner knew or should have known of the rotary method of drilling oil or gas wells, but, that such knowledge was possible and that the rotary method of drilling oil or gas wells could have, in some instances, been reasonably contemplated by the parties during the negotiations of the severance of the oil and gas from the surface. This presumption against knowledge of the rotary drilling method may be rebutted by a clear preponderance of the evidence showing that the surface owner or the surface owner's predecessor of record did in fact know of the rotary drilling method at the time the owner or the owner's predecessor executed a severance deed or lease of oil and gas and that the owner or owner's predecessor fairly contemplated the rotary drilling method and received compensation for the same.

(b) Any surface owner entitled to claim any finding or any presumption which is not rebutted as provided in this section shall be entitled to the compensation and damages of this article.

(c) The Legislature declares that the public policy of this state shall be that the compensation and damages provided in this article for surface owners may not be diminished by any provision in a deed, lease or other contract entered into after June 9, 1983.

(d) It is the purpose of this article to provide constitutionally permissible protection and compensation to surface owners of lands on which oil and gas wells are drilled from the burden resulting from drilling operations commenced after June 9, 1983. This article is to be interpreted in the light of the legislative intent expressed herein. This article shall be interpreted to benefit surface owners, regardless of whether the oil and gas mineral estate was separated from the surface estate and regardless of who executed the document which gave the oil and gas developer the right to conduct drilling operations on the land. Section four of this article shall be interpreted to benefit all persons.

§22-7-2. Definitions.

(a) In this article, unless the context or subject matter otherwise requires:

(1) “Agricultural production” means the production of any growing grass or crop attached to the surface of the land, whether or not the grass or crop is to be sold commercially, and the production of any farm animals, whether or not the animals are to be sold commercially;

(2) “Drilling operations” means the actual drilling or redrilling of an oil or gas well commenced subsequent to June 9, 1983, and the related preparation of the drilling site and access road, which requires entry, upon the surface estate;

(3) “Oil and gas developer” means the person who secures the drilling permit required by article six of this chapter;

(4) “Person” means any natural person, corporation, firm, partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary or other representative of any kind, and includes any government or any political subdivision or agency thereof;

(5) “Surface estate” means an estate in or ownership of the surface of a particular tract of land overlying the oil or gas leasehold being developed; and

(6) “Surface owner” means a person who owns an estate in fee in the surface of land, either solely or as a coowner.

§22-7-3. Compensation of surface owners for drilling operations.

(a) The oil and gas developer shall be obligated to pay the surface owner compensation for:

(1) Lost income or expenses incurred as a result of being unable to dedicate land actually occupied by the driller’s operation or to which access is prevented by such drilling operation to the uses to which it was dedicated prior to commencement of the activity for which a permit was obtained measured from the date the operator enters upon the land until the date reclamation is completed, (2) the market value of crops destroyed, damaged or prevented from reaching market, (3) any damage to a water supply in use prior to the commencement of the permitted activity, (4) the cost of repair of personal property up to the value of replacement by personal property of like age, wear and quality, and (5) the diminution in value, if any, of the surface lands and other property after completion of the surface disturbance done pursuant to the activity for which the permit was issued determined according to the actual use made thereof by the surface owner immediately prior to the commencement of the permitted activity.

The amount of damages may be determined by any formula mutually agreeable between the surface owner and the oil and gas developer.

(b) Any reservation or assignment of the compensation provided in this section apart from the surface estate except to a tenant of the surface estate is prohibited.

(c) In the case of surface lands owned by more than one person as tenants in common, joint tenants or other co-ownership, any claim for compensation under this article shall be for the benefit of all such co-owners. The resolution of a claim for compensation provided in this article shall operate as a bar to the assertion of additional claims under this section arising out of the same drilling operations.

§22-7-4. Common law right of action preserved; offsets.

(a) Nothing in section three or elsewhere in this article shall be construed to diminish in any way the common law remedies, including damages, of a surface owner or any other person against the oil and gas developer for the unreasonable, negligent or otherwise wrongful exercise of the contractual right, whether express or implied, to use the surface of the land for the benefit of the developer's mineral interest.

(b) An oil and gas developer shall be entitled to offset compensation agreed to be paid or awarded to a surface owner under section three of this article against any damages sought by or awarded to the surface owner through the assertion of common law remedies respecting the surface land actually occupied by the same drilling operation.

(c) An oil and gas developer shall be entitled to offset damages agreed to be paid or awarded to a surface owner through the assertion of common-law remedies against compensation sought by or awarded to the surface owner under section three of this article respecting the surface land actually occupied by the same drilling operation.

§22-7-5. Notification of claim.

Any surface owner, to receive compensation under section three of this article, shall notify the oil and gas developer of the damages sustained by the person within two years after the date that the oil and gas developer files notice that reclamation is commencing under section thirty, article six of this chapter. Such notice shall be given to surface owners by registered or certified mail, return receipt requested, and shall be complete upon mailing. If more than three tenants in common or other co-owners hold interests in such lands, the developer may give such notice to the person described in the records of the sheriff required to be maintained pursuant to section eight, article one, chapter eleven-a of this code or publish in the county in which the well is located or to be located a Class II legal advertisement as described in section two, article three, chapter fifty-nine of this code, containing such notice and information as the director shall prescribe by rule.

§22-7-6. Agreement; offer of settlement.

Unless the parties provide otherwise by written agreement, within sixty days after the oil and gas developer received the notification of claim specified in section five of this article, the oil and gas developer shall either make an offer of settlement to the surface owner seeking compensation, or reject the claim. The surface owner may accept or reject any offer so made.

§22-7-7. Rejection; legal action; arbitration; fees and costs.

(a) Unless the oil and gas developer has paid the surface owner a negotiated settlement of compensation within sixty days after the date the notification of claim was mailed under section five of this article, the surface owner may, within eighty days after the notification mail date, either: (i) Bring an action for compensation in the circuit court of the county in which the well is located; or (ii) elect instead, by written notice delivered by personal service or by certified mail, return receipt requested, to the designated agent named by the oil and gas developer under the provisions of section six, article six of this chapter, to have his compensation finally determined by binding arbitration pursuant to article ten, chapter fifty-five of this code.

Settlement negotiations, offers and counter-offers between the surface owner and the oil and gas developer shall not be admissible as evidence in any arbitration or judicial proceeding authorized under this article, or in any proceeding resulting from the assertion of common law remedies.

(b) The compensation to be awarded to the surface owner shall be determined by a panel of three disinterested arbitrators. The first arbitrator shall be chosen by the surface owner in such party's notice of election under this section to the oil and gas developer; the second arbitrator shall be chosen by the oil and gas developer within ten days after receipt of the notice of election; and the third arbitrator shall be chosen jointly by the first two arbitrators within twenty days thereafter. If they are unable to agree upon the third arbitrator within twenty days, then the two arbitrators are hereby empowered to and shall forthwith submit the matter to the court under the provisions of section one, article ten, chapter fifty-five of this code, so that, among other things, the third arbitrator can be chosen by the judge of the circuit court of the county wherein the surface estate lies.

(c) The following persons shall be deemed interested and not be appointed as arbitrators: Any person who is personally interested in the land on which rotary drilling is being performed or has been performed, or in any interest or right therein, or in the compensation and any damages to be awarded therefor, or who is related by blood or marriage to any person having such personal interest, or who stands in the relation of guardian and ward, master and servant, principal and agent, or partner, real estate broker, or surety to any person having such personal interest, or who has enmity against or bias in favor of any person who has such personal interest or who is the owner of, or interested in, such land or the oil and gas development thereof. No person shall be deemed interested or incompetent to act as arbitrator by reason of being an inhabitant of the county, district or municipal corporation wherein the land is located, or holding an interest in any other land therein.

(d) The panel of arbitrators shall hold hearings and take such testimony and receive such exhibits as shall be necessary to determine the amount of compensation to be paid to the surface owner. However, no award of compensation shall be made to the surface owner unless the panel of arbitrators has first viewed the surface estate in question. A transcript of the evidence may be made but shall not be required.

(e) Each party shall pay the compensation of such party's arbitrator and one half of the compensation of the third arbitrator, or such party's own court costs as the case may be.

§22-7-8. Application of article.

The remedies provided by this article shall not preclude any person from seeking other remedies allowed by law.

§22-8-1. Scope of article.

Every person, corporation or company now engaged, or which shall hereafter engage, in the business of transporting or storing petroleum, by means of pipeline or lines or storage by tanks, shall be subject to the provisions of this article and shall conduct such business in conformity herewith: Provided, That the provisions of this article shall be subject to all federal laws regulating interstate commerce on the same subject.

§22-8-2. Duty of pipeline companies to accept and transport oil.

Any company heretofore or hereafter organized for the purpose of transporting petroleum or other oils or liquids by means of pipeline or lines shall be required to accept all petroleum offered to it in merchantable order in quantities of not less than two thousand gallons at the wells where the same is produced, making at its own expense all necessary connections with the tanks or receptacles containing such petroleum, and to transport and deliver the same at any delivery station, within or without the state, on the route of its line of pipes, which may be designated by the owners of the petroleum so offered.

§22-8-3. Oil of 35 degrees Baume at 60 degrees Fahrenheit; inspection, grading and measurement; receipt; deduction for waste.

All petroleum of a gravity of thirty-five degrees Baume or under, at a temperature of sixty degrees Fahrenheit, offered for transportation by means of pipeline or lines, shall, before the same is transported, as provided by section two of this article, be inspected, graded and measured at the expense of the pipeline company, and the company accepting the same for transportation shall give to the owner thereof a receipt stating therein the number of barrels or gallons so received, and the grade, gravity and measurement thereof, and within a reasonable time thereafter, upon demand of the owner or the owner's assigns, shall deliver to the owner or the owner's assigns at the point of delivery a like quantity and grade or gravity of petroleum in merchantable condition as specified in such receipt; except that the company may deduct for waste one percent of the amount of petroleum specified in such receipt.

§22-8-4. Oil over 35 degrees Baume at 60 degrees Fahrenheit; inspection and measurement; loss.

All petroleum of a gravity exceeding thirty-five degrees Baume, at a temperature of sixty degrees Fahrenheit, offered for transportation by means of pipeline or lines, shall be inspected and measured at the expense of the company transporting the same, before the same is transported. The company accepting the same for transportation shall give to the owner thereof, or to the person in charge of the well or wells from which such petroleum has been produced and run, a ticket signed by its gauger, stating the number of feet and inches of petroleum which were in the tank or receptacle containing the same before the company began to run the contents from such tank, and the number of feet and inches of petroleum which remained in the tank after such run was completed. All deductions made for water, sediment or the like shall be made at the time such petroleum is measured. Within a reasonable time thereafter the company shall, upon demand, deliver from the petroleum in its custody to the owner thereof, or to the owner's assignee, at such delivery station on the route of its line of pipes as the owner or the owner's assignee may elect, a quantity of merchantable petroleum, equal to the quantity of petroleum run from such tank, or receptacle, which shall be ascertained by computation; except that the company transporting such petroleum may deduct for evaporation and waste two percent of the amount of petroleum so run, as shown by such run ticket, and except that in case of loss of any petroleum while in the custody of the company caused by fire, lightning, storm or other like unavoidable cause, such loss shall be borne pro rata by all the owners of such petroleum at the time thereof. But the company shall be liable for all petroleum that is lost while in its custody by the bursting of pipes or tanks, or by leakage from pipes or tanks; and it shall also be liable for all petroleum lost from tanks at the wells produced before the same has been received for transportation, if such loss be due to faulty connections made to such tanks; and the company shall be liable for all petroleum lost by the overflow of any tanks with which pipeline connections have been made, if such overflow be due to the negligence of such company, and for all the petroleum lost by the overflow of any tanks with which pipeline connections should have been made under the provisions of this article, but were not so made by reason of negligence or delay on the part of the company.

§22-8-5. Lien for charges.

Any company engaged in transporting or storing petroleum shall have a lien upon such petroleum until all charges for transporting and storing the same are paid.

§22-8-6. Accepted orders and certificates for oil -- Negotiability.

Accepted orders and certificates for petroleum, issued by any company engaged in the business of transporting and storing petroleum in this state by means of pipeline or lines and tanks, shall be negotiable, and may be transferred by indorsement either in blank or to the order of another, and any person to whom such accepted orders and certificates shall be so transferred shall be deemed and taken to be the owner of the petroleum therein specified.

§22-8-7. Same -- Further provisions.

No receipt, certificate, accepted order or other voucher shall be issued or put in circulation, nor shall any order be accepted or liability incurred for the delivery of any petroleum, crude or refined, unless the amount of such petroleum represented in or by such receipt, certificate, accepted order, or other voucher or liability, shall have been actually received by and shall then be in the tanks and lines, custody and control of the company issuing or putting in circulation such receipt, certificate, accepted order or voucher, or written evidence of liability. No duplicate receipt, certificate, accepted order or other voucher shall be issued or put in circulation, or any liability incurred for any petroleum, crude or refined, while any former liability remains in force, or any former receipt, certificate, accepted order or other voucher shall be outstanding and uncanceled, except such original papers shall have been lost, in which case a duplicate, plainly marked "duplicate" upon the face, and dated and numbered as the lost original was dated and numbered, may be issued. No receipt, voucher, accepted order, certificate or written evidence of liability of such company on which petroleum, crude or refined, has been delivered, shall be reissued, used or put in circulation. No petroleum, crude or refined, for which a receipt, voucher, accepted order, certificate or liability incurred, shall have been issued or put in circulation, shall be delivered, except upon the surrender of the receipt, voucher, order or liability representing such petroleum, except upon affidavit of loss of such instrument made by the former holder thereof. No duplicate receipt, certificate, voucher, accepted order or other evidence of liability, shall be made, issued or put in circulation until after notice of the loss of the original, and of the intention to apply for a duplicate thereof, shall have been given by advertisement over the signature of the owner thereof as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county where such duplicate is to be issued. Every receipt, voucher, accepted order, certificate or evidence of liability, when surrendered or the petroleum represented thereby delivered, shall be immediately canceled by stamping and punching the same across the face in large and legible letters with the word "canceled", and giving the date of such cancellation; and it shall then be filed and preserved in the principal office of such company for a period of six years.

§22-8-8. Dealing in oil without consent of owner.

No company, its officers or agents, or any person or persons engaged in the transportation or storage of petroleum, crude or refined, shall sell or encumber, ship, transfer, or in any manner remove or procure, or permit to be sold, encumbered, shipped, transferred, or in any manner removed from the tanks or pipes of such company engaged in the business aforesaid, any petroleum, crude or refined, without the written order of the owner or a majority of the owners in interest thereof.

§22-8-9. Monthly statements.

Every company now or hereafter engaged in the business of transporting by pipelines or storing crude or refined petroleum in this state shall, on or before the tenth day of each month, make or cause to be made and posted in its principal business office in this state, in an accessible and convenient place for the examination thereof by any person desiring such examination, and shall keep so posted continuously until the next succeeding statement is so posted, a statement plainly written or printed, signed by the officer, agent, person or persons having charge of the pipes and tanks of such company, and also by the officer or officers, person or persons, having charge of the books and accounts thereof, which statement shall show in legible and intelligible form the following details of the business: (a) How much petroleum, crude or refined, was in the actual and immediate custody of such company at the beginning and close of the previous month, and where the same was located or held; describing in detail the location and designation of each tank or place of deposit, and the name of its owner; (b) how much petroleum, crude or refined, was received by such company during the previous month; (c) how much petroleum, crude or refined, was delivered by such company during the previous month; (d) for how much petroleum, crude or refined, such company was liable for the delivery or custody of to other corporations, companies or persons at the close of the month; (e) how much of such liability was represented by outstanding receipts or certificates, accepted orders or other vouchers, and how much was represented by credit balances; (f) that all the provisions of this article have been faithfully observed and obeyed during the previous month. The statement so required to be made shall also be sworn to by such officer, agent, person or persons before some officer authorized by law to administer oaths, which shall be in writing, and shall assert the familiarity and acquaintance of the deponent with the business and condition of such company, and with the facts sworn to, and that the statements made in such report are true.

§22-8-10. Statements of amount of oil.

All amounts in the statements required by this article, when the petroleum is handled in bulk, shall be given in barrels and hundredths of barrels, reckoning forty-two gallons to each barrel, and when such petroleum is handled in barrels or packages, the number of such barrels or packages shall be given, and such statements shall distinguish between crude and refined petroleum, and give the amount of each. Every company engaged in the business aforesaid shall at all times have in their pipes and tanks an amount of merchantable oil equal to the aggregate of outstanding receipts, certificates, accepted orders, vouchers, acknowledgments, evidences of liability, and credit balances, on the books thereof.

§22-8-11. Penalty -- Wrongful issuance, sale or alteration of receipts, orders, etc.

Any company, or its officers or agents, who shall make or cause to be made, sign or cause to be signed, issue or cause to be issued, put in circulation or cause to be put in circulation, any receipt, accepted order, certificate, voucher or evidence of liability, or shall sell, transfer or alter the same, or cause such sale, transfer or alteration, contrary to the provisions of this article, or shall do or cause to be done any of the acts prohibited by section seven of this article, or omit to do any of the acts by said section directed, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding $1,000, and, if the offender be a natural person, imprisoned not less than ten days nor exceeding one year.

§22-8-12. Same -- Dealing in oil without consent of owner in interest.

Any company, its officers or agents, who shall sell, encumber, transfer or remove, or cause or procure to be sold, transferred or removed from the tanks or pipes of such company, any petroleum, crude or refined, without the written consent of the owner or a majority of the owners in interest thereof, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined $1,000 and, if the offender be a natural person, imprisoned in the county jail not less than ninety days nor more than one year.

§22-8-13. Same -- Failure to make report and statement.

Any company engaged in the business of transporting by pipelines or storing petroleum, crude or refined, and each and every officer or agent of such company, who shall neglect or refuse to make the report and statement required by section nine of this article, within the time and the manner directed by said section, shall forfeit and pay the sum of $1,000, and in addition thereto the sum of $500 for each day after the tenth day of the month that the report and statement required by said section nine shall remain unposted as therein directed.

§22-9-1. Definitions.

In this article unless the context otherwise requires:

(1) The term "coal mine" means those operations in a coal seam which include the excavated and abandoned portions as well as the places actually being worked; also all underground workings and shafts, slopes, tunnels, and other ways and openings and all such shafts, slopes, tunnels and other openings in the course of being sunk or driven, together with all roads and facilities connected with them below the surface.

(2) The term "operating coal mine" means: (a) A coal mine which is producing coal or has been in production of coal at any time during the twelve months immediately preceding the date its status is put in question under this article and any worked out or abandoned coal mine connected underground with or contiguous to such operating coal mine as herein defined; and (b) any coal mine to be established or reestablished as an operating coal mine in the future pursuant to section four of this article.

(3) The term "outside coal boundaries" when used in conjunction with the term "operating coal mine" means the boundaries of the coal acreage assigned to such coal mine and which can be practicably and reasonably expected to be mined through such coal mine.

(4) The term "well" means a borehole drilled or proposed to be drilled within the storage reservoir boundary or reservoir protective area for the purpose of or to be used for producing, extracting or injecting any gas, petroleum or other liquid but excluding boreholes drilled to produce potable water to be used as such.

(5) The term "gas" means any gaseous substance.

(6) The term "storage reservoir" means that portion of any subterranean sand or rock stratum or strata into which gas is or may be injected for the purpose of storage or for the purpose of testing whether said stratum is suitable for storage.

(7) The term "bridge" means an obstruction placed in a well at any specified depth.

(8) The term "linear foot" means a unit of measurement in a straight line on a horizontal plane.

(9) The term "person" means any individual, association, partnership or corporation.

(10) The term "reservoir protective area" means all of that area outside of and surrounding the storage reservoir boundary but within two thousand linear feet thereof.

(11) The term "retreat mining" means the removal of such coal, pillars, ribs and stumps as remain after the development mining has been completed in that section of a coal mine.

(12) The term "pillar" means a solid block of coal surrounded by either active mine workings or a mined out area.

(13) The term "inactivate" means to shut off all flow of gas from a well by means of a temporary plug, or other suitable device or by injecting aquagel or other such equally nonporous material into the well.

(14) The term "storage operator" means any person as herein defined who proposes to or does operate a storage reservoir, either as owner or lessee.

(15) The term "workable coal seam" has the same meaning as the term "workable coal bed" as set out in section one, article six of this chapter.

(16) The terms "owner", "coal operator", "well operator", "plat", "casing", "oil" and "cement" shall have the meanings set out in section one, article six of this chapter.

§22-9-2. Filing of maps and data by persons operating or proposing to operate gas storage reservoirs.

(a) Any person who, on June 8, 1955, is injecting gas into or storing gas in a storage reservoir which underlies or is within three thousand linear feet of an operating coal mine which is operating in a coal seam that extends over the storage reservoir or the reservoir protective area shall, within sixty days thereafter, file with the division a copy of a map and certain data in the form and manner provided in this subsection.

Any person who, on June 8, 1955, is injecting gas into or storing gas in a storage reservoir which is not at such date under or within three thousand linear feet, but is less than ten thousand linear feet from an operating coal mine which is operating in a coal seam that extends over the storage reservoir or the reservoir protective area, shall file such map and data within such time in excess of sixty days as the director may fix.

Any person who, after June 8, 1955, proposes to inject or store gas in a storage reservoir located as above shall file the required map and data with the director not less than six months prior to the starting of actual injection or storage.

The map provided for herein shall be prepared by a competent engineer or geologist. It shall show the stratum or strata in which the existing or proposed storage reservoir is or is to be located, the geographic location of the outside boundaries of the said storage reservoir and the reservoir protective area, the location of all known oil or gas wells which have been drilled into or through the storage stratum within the reservoir or within three thousand linear feet thereof, indicating which of these wells have been, or are to be cleaned out and plugged or reconditioned for storage and also indicating the proposed location of all additional wells which are to be drilled within the storage reservoir or within three thousand linear feet thereof.

The following information, if available, shall be furnished for all known oil or gas wells which have been drilled into or through the storage stratum within the storage reservoir or within three thousand linear feet thereof; name of the operator, date drilled, total depth, depth of production if the well was productive of oil or gas, the initial rock pressure and volume, the depths at which all coal seams were encountered and a copy of the driller's log or other similar information. At the time of the filing of the aforesaid maps and data such person shall file a detailed statement of what efforts have been made to determine, (1) that the wells shown on said map are accurately located thereon, and (2) that to the best of such person's knowledge the wells are all the oil or gas wells which have ever been drilled into or below the storage stratum within the proposed storage reservoir or within the reservoir protective area. This statement shall also include information as to whether or not the initial injection is for testing purposes, the maximum pressures at which injection and storage of gas is contemplated, and a detailed explanation of the methods to be used or which theretofore have been used in drilling, cleaning out, reconditioning or plugging wells in the storage reservoir or within the reservoir protective area. The map and data required to be filed hereunder shall be amended or supplemented semiannually in case any material changes have occurred: Provided, That the director may require a storage operator to amend or supplement such map or data at more frequent intervals if material changes have occurred justifying such earlier filing.

At the time of the filing of the above maps and data, and the filing of amended or supplemental maps or data, the director shall give written notice of said filing to all persons who may be affected under the provisions of this subsection by the storage reservoir described in such maps or data. Such notices shall contain a description of the boundaries of such storage reservoir. When a person operating a coal mine or owning an interest in coal properties which are or may be affected by the storage reservoir, requests in writing a copy of any map or data filed with the director such copy shall be furnished by the storage operator.

(b) Any person who, on June 8, 1955, is injecting gas into or storing gas in any other storage reservoir in this state not subject to subsection (a) of this section shall, on or before July 1, 1983, file with the division a map in the same detail as the map required for a storage reservoir subject to subsection (a) of this section; and, if the initial injection of gas into the storage reservoir by such person or any predecessor occurred after December 31, 1970, data in the same detail as the data required for a storage reservoir shall be filed subject to subsection (a) of this section: Provided, That in the case of a storage reservoir the operation of which has been certified by the federal power commission or the federal energy regulatory commission under section seven of the federal Natural Gas Act, the person may, in lieu of the data, submit copies of the application and all amendments and supplements of record in the federal docket, together with the certificate of public convenience and necessity and any amendments thereto.

Any person who, after June 8, 1955, proposes to inject or store gas in any other storage reservoir in this state not subject to subsection (a) of this section shall file with the division a map and data in the same detail as the map and data required for a storage reservoir subject to subsection (a) of this section not less than six months prior to the starting of actual injection or storage: Provided, That in the case of a storage reservoir the operation of which will be required to be certificated by the federal energy regulatory commission, the person may, in lieu of the data, submit copies of the application and all amendments and supplementals filed in the federal docket, together with the certificate of public convenience and necessity and any amendments thereto, within twenty days after the same have been filed by such person or issued by the federal energy regulatory commission.

At the time of the filing of the above maps and data or documents in lieu of data and filing of amended or supplemental maps or data or documents in lieu of data, or upon receipt of an application filed with the federal energy regulatory commission for a new storage reservoir, the director shall give notice of said filing by a Class II legal advertisement in accordance with the provisions of article three, chapter fifty-nine of this code, the publication area for which shall be the county or counties in which the storage reservoir is located. Such legal advertisements shall contain a description of the boundaries of such storage reservoir. The storage operator shall pay for the legal advertisement upon receipt of the invoice therefor from the division. When any person owning an interest in land which is or may be affected by the storage reservoir requests in writing a copy of any map or data or documents in lieu of data filed with the division, such copy shall be furnished by the storage operator.

(c) The director shall also intervene in the federal docket, and participate in the proceedings for the purpose of assuring that the certificate of public convenience and necessity issued by the federal energy regulatory commission does not authorize operations or practices in conflict with the provisions of this article. The director may cooperate with the Public Service Commission if the commission also intervenes. The Attorney General is hereby directed to provide legal representation to the director to achieve the purposes of this subsection.

(d) For all purposes of this article, the outside boundaries of a storage reservoir shall be defined by the location of those wells around the periphery of the storage reservoir which had no gas production when drilled in said storage stratum: Provided, That the boundaries as thus defined shall be originally fixed or subsequently changed where, based upon the number and nature of such wells, upon the geological and production knowledge of the storage stratum, its character, permeability, and distribution, and operating experience, it is determined in a conference or hearing under section ten of this article that modification should be made.

§22-9-3. Filing of maps and data by persons operating coal mines.

(a) Any person owning or operating a coal mine, who has not already done so pursuant to the former provisions of article four, chapter twenty-two-b of this code, shall, within thirty days from the effective date of this article, file with the director a map, prepared by a competent engineer, showing the outside coal boundaries of the said operating coal mine, the existing workings and exhausted areas and the relationship of said boundaries to identifiable surface properties and landmarks. Any person who is storing or contemplating the storage of gas in the vicinity of such operating coal mines shall, upon written request, be furnished a copy of the aforesaid map by the coal operator and such person and the director shall thereafter be informed of any boundary changes at the time such changes occur. The director shall keep a record of such information and shall promptly notify both the coal operator and the storage operator if it is found that the coal mine and the storage reservoir are within ten thousand linear feet of each other.

(b) Any person owning or operating any coal mine which, on March 10, 1955, is or which thereafter comes within ten thousand linear feet of a storage reservoir, and where the coal seam being operated extends over the storage reservoir or the reservoir protective area, shall within forty-five days after such person has notice from the director of such fact, file with the director and furnish to the person operating such storage reservoir, a map in the form hereinabove provided and showing in addition, the existing and projected excavations and workings of such operating coal mine for the ensuing eighteen-month period, and also the location of any oil or gas wells of which said coal operator has knowledge. Such person owning or operating said coal mine shall each six months thereafter file with the director and furnish to the person operating such storage reservoir a revised map showing any additional excavations and workings, together with the projected excavations and workings for the then ensuing eighteen-month period which may be within ten thousand linear feet of said storage reservoir: Provided, That the director may require a coal operator to file such revised map at more frequent intervals if material changes have occurred justifying such earlier filing. Such person owning or operating said coal mine shall also file with the director and furnish the person operating said reservoir prompt notice of any wells which have been cut into, together with all available pertinent information.

§22-9-4. Notice by persons operating coal mines.

(a) Any person owning or operating a coal mine on June 8, 1955, and having knowledge that it overlies or is within two thousand linear feet of a gas storage reservoir, shall within thirty days notify the director and the storage operator of such fact unless such notification has already been provided to the director pursuant to the provisions of former article four, chapter twenty-two-b of this code.

(b) When any person owning or operating a coal mine hereafter expects that within the ensuing nine-month period such coal mine will be extended to a point which will be within two thousand linear feet of any storage reservoir, such person shall notify the director and the storage operator in writing of such fact.

(c) Any person hereafter intending to establish or reestablish an operating coal mine which when established or reestablished will be over a storage reservoir or within two thousand linear feet of a storage reservoir, or which upon being established or reestablished may within nine months thereafter be expected to be within two thousand linear feet of a storage reservoir, shall notify the director and the storage operator in writing before doing so and such notice shall include the date on which it is intended the operating coal mine will be established or reestablished.

Any person who serves such notice of an intention to establish or reestablish an operating coal mine under this subsection, without intending in good faith to establish or reestablish such mine, shall be liable for continuing damages to any storage operator injured by the serving of such improper notice and shall be guilty of a misdemeanor under this article and subject to the same penalties as set forth in section twelve of this article.

§22-9-5. Obligations to be performed by persons operating storage reservoirs.

(a) Any person who, on or after June 8, 1955, is operating a storage reservoir which underlies or is within two thousand linear feet of an operating coal mine which is operating in a coal seam that extends over the storage reservoir or the reservoir protective area, shall:

(1) Use every known method which is reasonable under the circumstances for discovering and locating all wells which have or may have been drilled into or through the storage stratum in that acreage which is within the outside coal boundaries of such operating coal mine and which overlies the storage reservoir or the reservoir protective area;

(2) Plug or recondition, in the manner provided by sections twenty-three and twenty-four, article six of this chapter and subsection (e) of this section, all known wells (except to the extent otherwise provided in subsections (e), (f), (g) and (h) of this section) drilled into or through the storage stratum and which are located within that portion of the acreage of the operating coal mine overlying the storage reservoir or the reservoir protective area: Provided, That where objection is raised as to the use of any well as a storage well, and after a conference or hearing in accordance with section ten of this article it is determined, taking into account all the circumstances and conditions, that such well should not be used as a storage well, such well shall be plugged: Provided, however, That if, in the opinion of the storage operator, the well to which such objection has been raised may at some future time be used as a storage well, the storage operator may recondition and inactivate such well instead of plugging it, if such alternative is approved by the director after taking into account all of the circumstances and conditions.

The requirements of subdivision (2) of this subsection shall be deemed to have been fully complied with if, as the operating coal mine is extended, all wells which, from time to time, come within the acreage described in said subdivision (2) are reconditioned or plugged as provided in subsection (e) or (f) of this section and in section twenty-four, article six of this chapter so that by the time the coal mine has reached a point within two thousand linear feet of any such wells, they will have been reconditioned or plugged so as to meet the requirements of said subsection (e) or (f) and of said section twenty-four of article six.

(b) Any person operating a storage reservoir referred to in subsection (a) of this section who has not already done so pursuant to the provisions of former article four, chapter twenty-two-b of this code, shall within sixty days after the effective date of this article file with the director and furnish a copy to the person operating the affected operating coal mine, a verified statement setting forth:

(1) That the map and any supplemental maps required by subsection (a), section two of this article have been prepared and filed in accordance with section two;

(2) A detailed explanation of what the storage operator has done to comply with the requirements of subdivisions (1) and (2), subsection (a) of this section and the results thereof;

(3) Such additional efforts, if any, as the storage operator is making and intends to make to locate all oil and gas wells; and

(4) Any additional wells that are to be plugged or reconditioned to meet the requirements of subdivision (2), subsection (a) of this section.

If such statement is not filed by the storage reservoir operator within the time specified herein, the director shall summarily order such operator to file such statement.

(c) Within one hundred twenty days after the receipt of any such statement, the director may, and shall, if so requested by either the storage operator or the coal operator affected, direct that a conference be held in accordance with section ten of this article to determine whether the information as filed indicates that the requirements of section two of this article and of subsection (a) of this section have been fully complied with. At such conference, if any person shall be of the opinion that such requirements have not been fully complied with, the parties shall attempt to agree on what additional things are to be done and the time within which they are to be completed, subject to the approval of the director, to meet the said requirements.

If such agreement cannot be reached, the director shall direct that a hearing be held in accordance with section ten of this article. At such hearing the director shall determine whether the requirements of said section two of this article and of subsection (a) of this section have been met and shall issue an order setting forth such determination. If the director shall determine that any of the said requirements have not been met, the order shall specify, in detail, both the extent to which such requirements have not been met, and the things which the storage operator must do to meet such requirements. The order shall grant to the storage operator such time as is reasonably necessary to complete each of the things which such operator is directed to do. If, in carrying out said order, the storage operator encounters conditions which were not known to exist at the time of the hearing and which materially affect the validity of said order or the ability of the storage operator to comply with the order, the storage operator may apply for a rehearing or modification of said order.

(d) Whenever, in compliance with subsection (a) of this section, a storage operator, after the filing of the statement provided for in subsection (b) of this section, plugs or reconditions a well, such operator shall so notify the director and the coal operator affected in writing, setting forth such facts as will indicate the manner in which the plugging or reconditioning was done. Upon receipt thereof, the coal operator affected or the director may request a conference or hearing in accordance with section ten of this article.

(e) In order to meet the requirements of subsection (a) of this section, wells which are to be plugged shall be plugged in the manner specified in section twenty-four, article six of this chapter. When a well located within the storage reservoir or the reservoir protective area has been plugged prior to March 10, 1955, and on the basis of the data, information and other evidence submitted to the director, it is determined that: (1) Such plugging was done in the manner required in section twenty-four, article six of this chapter; and (2) said plugging is still sufficiently effective to meet the requirements of this article, the obligations imposed by subsection (a) of this section as to plugging said well shall be considered fully satisfied.

(f) In order to meet the requirements of subsection (a) of this section, wells which are to be reconditioned shall be cleaned out from the surface through the storage horizon and the following casing strings shall be pulled and replaced with new casing, using the same procedure as is applicable to drilling a new well as provided for in sections eighteen, nineteen and twenty, article six of this chapter: (1) The producing casing; (2) the largest diameter casing passing through the lowest workable coal seam unless such casing extends at least twenty-five feet below the bottom of such coal seam and is determined to be in good physical condition: Provided, That the storage operator may, instead of replacing the largest diameter casing, replace the next largest casing string if such casing string extends at least twenty-five feet below the lowest workable coal seam; and (3) such other casing strings which are determined not to be in good physical condition. In the case of wells to be used for gas storage, the annular space between each string of casing, and the annular space behind the largest diameter casing to the extent possible, shall be filled to the surface with cement or aquagel or such equally nonporous material as is approved by the director pursuant to section eight of this article. At least fifteen days prior to the time when a well is to be reconditioned the storage operator shall give notice thereof to the coal operator or owner and to the director setting forth in such notice the manner in which it is planned to recondition such well and any pertinent data known to the storage operator which will indicate the then existing condition of such well. In addition the storage operator shall give the coal operator or owner and such representative of the director as the director shall have designated at least seventy-two hours notice of the time when such reconditioning is to begin. The coal operator or owner shall have the right to file, within ten days after the receipt of the first notice required herein, objections to the plan of reconditioning as submitted by the storage operator. If no such objections are filed or if none is raised by the director within such ten-day period, the storage operator may proceed with the reconditioning in accordance with the plan as submitted. If any such objections are filed by the coal operator or owner or are made by the director, the director shall fix a time and place for a conference in accordance with section ten of this article at which conference the well operator and the person who has filed such objections shall endeavor to agree upon a plan of reconditioning which meets the requirements herein and which will satisfy such objections. If no plan is approved at such conference, the director shall direct that a hearing be held in accordance with section ten of this article and, after such hearing, shall by an appropriate order determine whether the plan as submitted meets the requirements set forth herein, or what changes, if any, should be made to meet such requirements. If, in reconditioning a well in accordance with said plan, physical conditions are encountered which justify or necessitate a change in said plan, the storage operator or the coal operator may request that the plan be changed. If the storage operator and the coal operator cannot agree upon such change, the director shall arrange for a conference or hearing in accordance with section ten of this article to determine the matter in the same manner as set forth herein in connection with original objections to said plan. Application may be made to the director in the manner prescribed in section eight of this article for approval of an alternative method of reconditioning a well. When a well located within the storage reservoir or the reservoir protective area has been reconditioned prior to March 10, 1955, or was so drilled and equipped previously and on the basis of the data, information and other evidence submitted to the director, it is determined that: (1) Such reconditioning or previous drilling and equipping was done in the manner required in this subsection, or in a manner approved as an alternative method in accordance with section eight of this article and (2) such reconditioning or previous drilling and equipping is still sufficiently effective to meet the requirements of this article, the obligations imposed by subsection (a) as to reconditioning said well shall be considered fully satisfied. Where a well requires emergency repairs this subsection shall not be construed to require the storage operator to give the notices specified herein before making such repairs.

(g) When a well located within the reservoir protective area is a producing well in a stratum below the storage stratum the obligations imposed by subsection (a) of this section shall not begin until such well ceases to be a producing well.

(h) When a well within a storage reservoir or the reservoir protective area penetrates the storage stratum but does not penetrate the coal seam being mined by an operating coal mine the director may, upon application of the operator of such storage reservoir, exempt such well from the requirements of this section. Either party affected may request a conference and hearing with respect to the exemption of any such well in accordance with section ten of this article.

(i) In fulfilling the requirements of subdivision (2), subsection (a) of this section with respect to a well within the reservoir protective area, the storage operator shall not be required to plug or recondition such well until he has received from the coal operator written notice that the mine workings will within the period stated in such notice, be within two thousand linear feet of such well. Upon the receipt of such notice the storage operator shall use due diligence to complete the plugging or reconditioning of such well in accordance with the requirements of this section and of section twenty-four, article six of this chapter. If the said mine workings do not, within a period of three years after said well has been plugged, come within two thousand linear feet of said well, the coal operator shall reimburse the storage operator for the cost of said plugging, provided such well is still within the reservoir protective area as of that time.

(j) When retreat mining approaches a point where within ninety days it is expected that such retreat work will be at the location of the pillar surrounding an active storage well the coal operator shall give written notice of such approach to the storage operator and by agreement said parties shall determine whether it is necessary or advisable to inactivate effectively said well temporarily. The well shall not be reactivated until a reasonable period has elapsed, such reasonable period to be determined by the said parties. In the event that the said parties cannot agree upon either of the foregoing matters, such question shall be submitted to the director for decision in accordance with section ten of this article. The number of wells required to be temporarily inactivated during the retreat period shall not be such as to materially affect the efficient operation of such storage pool. This provision shall not preclude the temporary inactivation of a particular well where the practical effect of inactivating such well is to render the pool temporarily inoperative.

(k) The requirements of subsections (a), (l) and (m) of this section shall not apply to the injection of gas into any stratum when the sole purpose of such injection (such purpose being herein referred to as testing) is to determine whether the said stratum is suitable for storage purposes: Provided, That such testing shall be conducted only in compliance with the following requirements:

(1) The person testing or proposing to test shall comply with all the provisions and requirements of section two of this article and shall verify the statement required to be filed thereby;

(2) If any part of the proposed storage reservoir is under or within two thousand linear feet of an operating coal mine which is operating in a coal seam that extends over the proposed storage reservoir or the reservoir protective area, the storage operator shall give at least six months' written notice to the director and to the coal operator of the fact that injection of gas for testing purposes is proposed;

(3) The coal operator affected may at any time file objections with the director in accordance with subsection (d), section nine of this article. If any such objections are filed by the coal operator or if the director shall have any objections, the director shall fix a time and place for a conference in accordance with section ten of this article, not more than ten days from the date of the notice to the storage operator, at which conference the storage operator and the person who has filed such objections shall attempt to agree, subject to the approval of the director, on the questions involved. If such agreement cannot be reached at such conference, the director shall direct that a hearing be held in accordance with section ten of this article. At such hearing the director shall determine and set forth in an appropriate order the conditions and requirements which the director shall deem necessary or advisable in order to prevent gas from such storage reservoir from entering any operating coal mine. The storage operator shall comply with such conditions and requirements throughout the period of the testing operations. In determining such conditions and requirements the director shall take into account the extent to which the matters referred to in subsection (a) of this section have been performed. If, in carrying out said order, either the storage operator or the coal operator encounters or discovers conditions which were not known to exist at the time of the hearing and which materially affect said order or the ability of the storage operator to comply with the order, either operator may apply for a rehearing or modification of said order;

(4) Where, at any time, a proposed storage reservoir being tested comes under or within two thousand linear feet of an operating coal mine either because of the extension of the storage reservoir being tested or because of the extension or establishment or reestablishment of the operating coal mine, then and at the time of any such event the requirements of this subsection shall become applicable to such testing.

(l) Any person who proposes to establish a storage reservoir under, or within two thousand linear feet of an operating coal mine which is operating in a coal seam that extends over the storage reservoir or the reservoir protective area, shall, prior to establishing such reservoir, in addition to complying with the requirements of section two of this article and subsection (a) of this section, file the verified statement required by subsection (b) of this section and fully comply with such order or orders, if any, as the director may issue in the manner provided for under subsection (b) or (c) of this section before beginning the operation of such storage reservoir. After the person proposing to operate such storage reservoir shall have complied with such requirements and shall have thereafter begun to operate such reservoir, such person shall continue to be subject to all of the provisions of this article.

(m) When a gas storage reservoir, (1) was in operation on June 8, 1955, and at any time thereafter it is under or within two thousand linear feet of an operating coal mine, or (2) when a gas storage reservoir is put in operation after June 8, 1955, and at any time after such storage operations begin it is under or within two thousand linear feet of an operating coal mine, then and in either such event, the storage operator shall comply with all of the provisions of this section except that the time for filing the verified statement under subsection (b) shall be sixty days after the date stated in the notice filed by the coal operator under subsection (b) or (c), section four of this article as to when the operating coal mine will be at a point within two thousand linear feet of such reservoir: Provided, That if the extending of the projected workings or the proposed establishment or reestablishment of the operating coal mine is delayed after the giving of the notice provided in subsections (b) and (c), section four of this article, the coal operator shall give notice of such delay to the director and the director shall, upon the request of the storage operator, extend the time for filing such statement by the additional time which will be required to extend or establish or reestablish such operating coal mine to a point within two thousand linear feet of such reservoir. Such verified statement shall also indicate that the map referred to in subsection (a), section two of this article has been currently amended as of the time of the filing of such statement. The person operating any such storage reservoir shall continue to be subject to all of the provisions of this article.

(n) If, in any proceeding under this article, the director shall determine that any operator of a storage reservoir has failed to carry out any lawful order of the director issued under this article, the director shall have authority to require such storage operator to suspend the operation of such reservoir and to withdraw the gas therefrom until such violation is remedied. In such an event the gas shall be withdrawn under the following conditions. The storage operator shall remove the maximum amount of gas which is required by the director to be removed from the storage reservoir that can be withdrawn in accordance with recognized engineering and operating procedures and shall proceed with due diligence insofar as existing facilities used to remove gas from the reservoir will permit.

(o) In addition to initial compliance with the other provisions of this article and any lawful orders issued thereunder, it shall be the duty at all times of the person owning or operating any storage reservoir which is subject to the provisions of this article to keep all wells drilled into or through the storage stratum in such condition and to operate the same in such manner as to prevent the escape of gas into any coal mine therefrom, and to operate and maintain such storage reservoir and its facilities in such manner and at such pressures as will prevent gas from escaping from such reservoir or its facilities into any coal mine: Provided, That this duty shall not be construed to include the inability to prevent the escape of gas where such escape results from an act of God or an act of any person not under the control of the storage operator other than in connection with any well which the storage operator has failed to locate and to make known to the director: Provided, however, That if any escape of gas into a coal mine does result from an act of God or an act of any person not under the control of the storage operator, the storage operator shall be under the duty of taking such action thereafter as is reasonably necessary to prevent further escape of gas into the coal mine.

§22-9-6. Inspection of facilities and records; reliance on maps; burden of proof.

(a) In determining whether a particular coal mine or operating coal mine is or will be within any distance material under this article from any storage reservoir, the owner or operator of such coal mine and the storage operator may rely on the most recent map of the storage reservoir or coal mine filed by the other with the director.

(b) In any proceeding under this article where the accuracy of any map or data filed by any person pursuant to the requirements of this article is in issue, the person filing the same shall at the request of any party to such proceeding be required to disclose the information and method used in compiling such map and data and such information as is available to such person that might affect the current validity of such map or data. If any material question is raised in such proceeding as to the accuracy of such map or data with respect to any particular matter or matters contained therein, the person filing such map or data shall then have the burden of proving the accuracy of the map or data with respect to such matter or matters.

(c) The person operating any storage reservoir affected by the terms of this article shall, at all reasonable times, be permitted to inspect the applicable records and facilities of any coal mine overlying such storage reservoir or the reservoir protective area, and the person operating any such coal mine affected by the terms of this article, shall similarly, at all reasonable times, be permitted to inspect the applicable records and facilities of any such storage reservoir underlying any such coal mine. In the event that either such storage operator or coal operator shall refuse to permit any such inspection of records or facilities, the director shall, on the director's own motion, or on application of the party seeking the inspection after reasonable written notice, and a hearing thereon, if requested by either of the parties affected, make an order providing for such inspection.

§22-9-7. Exemptions.

(a) The provisions of this article shall not apply to strip mines and auger mines operating from the surface.

(b) Injection of gas for storage purposes in any workable coal seam, whether or not such seam is being or has been mined, shall be prohibited. Nothing in this article shall be construed to prohibit the original extraction of natural gas, crude oil or coal. No storage operator shall have authority to appropriate any coal or coal measure whether or not being mined, or any interest therein.

§22-9-8. Alternative method.

(a) Whenever provision is made in this article by reference to this section for using an alternative method or material in carrying out any obligation imposed by the article, the person seeking the authority to use such alternative method or material shall file an application with the director describing such proposed alternative method or material in reasonable detail. Notice of filing of any such application shall be given by registered mail to any coal operator or operators affected. Any such coal operator may within ten days following such notice, file objections to such proposed alternative method or material. If no objections are filed within said ten-day period or if none is raised by the director, the director shall forthwith issue a permit approving such proposed alternative method or material.

(b) If any such objections are filed by any coal operator or are raised by the director, the director shall direct that a conference be held in accordance with section ten of this article within the ten days following the filing of such objections. At such conferences the person seeking approval of the alternative method or material and the person who has filed such objections shall attempt to agree on such alternative method or material or any modification thereof, and if such agreement is reached and approved by the director, the director shall forthwith issue a permit approving the alternative method or material. If no such agreement is reached and approved, the director shall direct that a hearing be held in accordance with section ten of this article: Provided, That if the alternative method or material involves a new development in technology or technique the director may, before such a hearing is held, grant such affected parties a period not to exceed ninety days to study and evaluate said proposed alternative method or material. Following such hearing, if the director shall find that such proposed alternative method or material will furnish adequate protection to the workable coal seams, the director shall by order approve such alternative method or material; otherwise the director shall deny the said application.

§22-9-9. Powers and duties of director.

(a) The director may review the maps and data filed under sections two and three hereof for the purpose of determining the accuracy thereof. Where any material question is raised by any interested storage operator or coal operator or owner as to the accuracy of any such map or data, the director shall hold hearings thereon and shall by an appropriate order require the person filing such map or data to correct the same if they are found to be erroneous.

(b) It shall be the duty of the director to receive and keep in a safe place for public inspection any map, data, report, well log, notice or other writing required to be filed with it pursuant to the provisions of this article. The director shall keep such indices of all such information as will enable any person using the same to readily locate such information either by the identity of the person who filed the same or by the person or persons affected by such filing or by the geographic location of the subject matter by political subdivision. The director shall also keep a docket for public inspection of all proceedings, in which shall be entered the dates of any notices, the names of all persons notified and their addresses, the dates of hearings, conferences and all orders, decrees, decisions, determinations, rulings or other actions issued or taken by the director and such docket shall constitute the record of each and every proceeding before the director.

(c) The director shall have authority to make any inspections and investigations of records and facilities which are deemed necessary or desirable to perform the director's functions under this article.

(d) Where in any section of this article provision is made for the filing of objections, such objections shall be filed in writing with the director, by the person entitled to file the same or by the director, and shall state as definitely as is reasonably possible the reasons for such objections. The person filing such objections shall send a copy thereof by registered mail to the person or persons affected thereby.

§22-9-10. Conferences, hearings and appeals.

(a) The director or any person having a direct interest in the subject matter of this article may at any time request that a conference be held for the purpose of discussing and endeavoring to resolve by mutual agreement any matter arising under the provisions of this article. Prompt notice of any such conference shall be given by the director to all such interested parties. At such conference a representative of the director shall be in attendance, and the director may make such recommendations as are deemed appropriate. Any agreement reached at such conference shall be consistent with the requirements of this article and, if approved by such representative of the director, it shall be reduced to writing and shall be effective unless reviewed and rejected by the director within ten days after the close of the conference. The record of any such agreement approved by the director shall be kept on file by the director with copies furnished to the parties. The conference shall be deemed terminated as of the date any party refuses to confer thereafter. Such a conference shall be held in all cases prior to conducting any hearing under this section.

(b) Within ten days after termination of the conference provided for in this section at which no approved agreement has been reached or within ten days after the rejection by the director of any agreement approved at any such conference, any person who has a direct interest in the subject matter of the conference may submit the matter or matters, or any part thereof, considered at the conference, to the director for determination at a public hearing. The hearing procedure shall be formally commenced by the filing of a petition with the director upon forms prescribed by the director or by specifying in writing the essential elements of the petition, including name and address of the petitioner and of all other persons affected thereby, a clear and concise statement of the facts involved, and a specific statement of the relief sought. The hearing shall thereafter be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code and with such rules and such provisions as to reasonable notice as the director may prescribe. Consistent with the requirements for reasonable notice all hearings under this article shall be held by the director promptly. All testimony taken at such hearings shall be under oath and shall be reduced to writing by a reporter appointed by the director, and the parties shall be entitled to appear and be heard in person or by attorney. The director may present at such hearing any evidence which is material to the matter under consideration and which has come to the director's attention in any investigation or inspection made pursuant to provisions of this article.

(c) After the conclusion of hearings, the director shall make and file the director's findings and order with the director's opinion, if any. A copy of such order shall be served by registered mail upon the person against whom it runs, or such person's attorney of record, and notice thereof shall be given to the other parties to the proceedings, or their attorney of record.

(d) The director may, at any time after notice and after opportunity to be heard as provided in this section, rescind or amend any approved agreement or order made by the director. Any order rescinding or amending a prior agreement or order shall, when served upon the person affected, and after notice thereof is given to the other parties to the proceedings, have the same effect as is herein provided for original orders; but no such order shall affect the legality or validity of any acts done by such person in accordance with the prior agreement or order before receipt by such person of the notice of such change.

(e) The director shall have power, either personally or by any of the director's authorized representatives, to subpoena witnesses and take testimony, and administer oaths to any witness in any hearing, proceeding or examination instituted before the director or conducted by the director with reference to any matter within the jurisdiction of the director. In all hearings or proceedings before the director the evidence of witnesses and the production of documentary evidence may be required at any designated place of hearing; and in case of disobedience to a subpoena or other process the director or any party to the proceedings before the director may invoke the aid of any circuit court in requiring the evidence and testimony of witnesses and the production of such books, records, maps, plats, papers, documents and other writings as the director may deem necessary or proper in and pertinent to any hearing, proceeding or investigation held or had by the director. Such court, in case of the refusal of any such person to obey the subpoena, shall issue an order requiring such person to appear before the director and produce the required documentary evidence, if so ordered, and give evidence touching the matter in question. Any failure to obey such order of the court may be punished by such court as contempt thereof. A claim that any such testimony or evidence may tend to incriminate the person giving the same shall not excuse such witness from testifying, but such witness shall not be prosecuted for any offense concerning which the witness compelled hereunder to testify.

(f) With the consent of the director, the testimony of any witness may be taken by deposition at the instance of a party to any hearing before the director at any time after hearing has been formally commenced. The director may, of the director's own motion, order testimony to be taken by deposition at any stage in any hearing, proceeding or investigation pending before the director. Such deposition shall be taken in the manner prescribed by the laws of West Virginia for taking depositions in civil cases in courts of record.

(g) Whether or not it be so expressly stated, an appeal from any final order, decision or action by the director in administering the provisions of this article may be taken by any aggrieved person within ten days of notice of such order, decision or action, to the circuit court of the county in which the subject matter of such order, decision or action is located, and in all cases of appeals to the circuit court, that court shall certify its decisions to the director. The circuit court to which the appeal is taken shall hear the appeal without a jury on the record certified by the director. In any such appeal the findings of the director shall, if supported by substantial evidence, be conclusive. If the order of the director is not affirmed, the court may set aside or modify it, in whole or in part, or may remand the proceedings to the director for further disposition in accordance with the order of the court. From all final decisions of the circuit court an appeal shall lie to the Supreme Court of Appeals as is now provided by law in cases in equity, by the director as well as by any other party of record before the circuit court.

Any party feeling aggrieved by the final order of the circuit court affecting him may present his petition in writing to the Supreme Court of Appeals, or to a judge thereof in vacation, within twenty days after the entry of such order, praying for the suspension or modification of such final order. The applicant shall deliver a copy of such petition to the director and to all other parties of record before presenting the same to the court or judge. The court or judge shall fix a time for the hearing on the application, but such hearing shall not be held sooner than seven days after its presentation unless by agreement of the parties, and notice of the time and place of such hearing shall be forthwith given to the director and to all other parties of record. If the court or judge, after such hearing, be of opinion that such final order should be suspended or modified, the court or the judge may require bond, upon such conditions and in such penalty, and impose such terms and conditions upon the petitioner as are just and reasonable. For such hearing the entire record before the circuit court, or a certified copy thereof, shall be filed in the supreme court, and that court, upon such papers, shall promptly decide the matter in controversy as may seem to it to be just and right, and may award costs in each case as to it may seem just and equitable.

§22-9-11. Enforcement.

(a) The director or any person having a direct interest in the subject matter of this article may complain in writing setting forth that any person is violating or is about to violate, any provisions of this article, or has done, or is about to do, any act, matter or thing therein prohibited or declared to be unlawful, or has failed, omitted, neglected or refused, or is about to fail, omit, neglect or refuse, to perform any duty enjoined upon him by this article. Upon the filing of a complaint against any person, the director shall cause a copy thereof to be served upon such person by registered mail accompanied by a notice from the director setting such complaint for hearing at a time and place specified in such notice. At least five days' notice of such hearing shall be given to the parties affected and such hearing shall be held in accordance with the provisions of section ten of this article. Following such hearing, the director shall, if the director finds that the matter alleged in the complaint is not in violation of this article, dismiss the complaint, but if the director shall find that the complaint is justified, the director shall by appropriate order compel compliance with this article.

(b) Whenever the director shall be of the opinion that any person is violating, or is about to violate, any provisions of this article, or has done, or is about to do, any act, matter or thing therein prohibited or declared to be unlawful, or has failed, omitted, neglected or refused, or is about to fail, omit, neglect or refuse, to perform any duty enjoined upon the director by this article, or has failed, omitted, neglected or refused, or is about to fail, omit, neglect or refuse to obey any lawful requirement or order made by the director, or any final judgment, order or decree made by any court pursuant to this article, then and in every such case the director may institute in the circuit court of the county or counties wherein the operation is situated, injunction, mandamus or other appropriate legal proceedings to restrain such violations of the provisions of this article or of orders of the director to enforce obedience therewith. No injunction bond shall be required to be filed in any such proceeding. Such persons or corporations as the court may deem necessary or proper to be joined as parties in order to make its judgment, order or writ effective may be joined as parties. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that the writ of mandamus or injunction or other order, issue or be made permanent as prayed for in the petition or in such modified or other form as will afford appropriate relief. An appeal may be taken as in other civil actions.

(c) In addition to the other remedies herein provided, any storage operator or coal operator affected by the provisions of this article may proceed by injunction or other appropriate remedy to restrain violations or threatened violations of the provisions of this article or of orders of the director or the judgments, orders or decrees of any court or to enforce obedience therewith.

(d) Each remedy prescribed in this section shall be deemed concurrent or contemporaneous with any other remedy prescribed herein and the existence or exercise of any one such remedy shall not prevent the exercise of any other such remedy.

§22-9-12. Penalties.

Any person who shall willfully violate any order of the director issued pursuant to the provisions of this article shall be guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding $2,000, or imprisoned in jail for not exceeding twelve months, or both, in the discretion of the court, and prosecutions under this section may be brought in the name of the State of West Virginia in the court exercising criminal jurisdiction in the county in which the violation of such provisions of the article or terms of such order was committed, and at the instance and upon the relation of any citizen of this state.

§22-9-13. Orders remain in effect.

All orders in effect upon the effective date of this article pursuant to the provisions of former article four, chapter twenty-two-b of this code, shall remain in full force and effect as if such orders were adopted by the division established in this chapter but all such orders shall be subject to review by the director to ensure they are consistent with the purposes and policies set forth in this chapter.

§22-10-1. Short title.

This article may be cited as Abandoned Well Act.

§22-10-2. Legislative findings; legislative statement of policy and purpose.

(a) The Legislature finds and declares that:

(1) Oil and gas have been continuously produced in West Virginia for over one hundred years, during which time operators of wells have been required by the laws of this state to plug wells upon cessation of use;

(2) The plugging requirements for certain older oil and gas and other wells may not have been sufficient to protect underground water supplies, to prevent the movement of fluids between geologic horizons, to allow coal operators to mine through such wells safely, nor to allow for enhanced recovery of oil, gas or other mineral resources of this state;

(3) Many wells may exist in West Virginia which are abandoned and either not plugged or not properly plugged in a manner to protect underground water supplies, to prevent the movement of fluids between geologic horizons, to allow coal operators to mine through such wells safely, to allow for enhanced recovery of oil, gas and other mineral resources, and generally to protect the environment and mineral resources of this state, as aforesaid;

(4) Requirements for financial responsibility to assure plugging of abandoned wells have not been required in this state for older wells, and adequate financial responsibility should be established with respect to all wells;

(5) Programs and policies should be implemented to foster, encourage and promote through the fullest practical means the proper plugging of abandoned wells to protect the environment and mineral resources of this state;

(6) Criteria should be established with respect to priorities for the expenditure of moneys available for plugging abandoned wells and identifying those abandoned wells which, as a matter of public policy, should be plugged first; and

(7) The plugging of many abandoned wells may be accomplished through the establishment of rights and procedures allowing interested persons to apply for a permit to plug an abandoned well.

(b) The Legislature hereby declares that it is in the public interest and it is the public policy of this state, to foster, encourage and promote the proper plugging of all wells at the time of their abandonment to protect the environment and mineral resources of this state.

§22-10-3. Definitions.

Unless the context in which it is used clearly requires a different meaning, as used in this article:

(a) "Abandoned well" means any well which is required to be plugged under the provisions of section nineteen, article six of this chapter and rules promulgated pursuant thereto.

(b) "Director" means for the purpose of this article, the director of the Division of Environmental Protection as established in article one of this chapter or such other person to whom the director may delegate authority or duties pursuant to sections six or eight, article one of this chapter.

(c) "Interested party" means, for the purpose of this article, any owner, operator or lessee of the surface, oil, gas, water, coal or other mineral resource under, on, adjacent or in close proximity to any lands upon which an abandoned well exists, and whose lands, rights or interests are or might be affected by such abandoned well.

§22-10-4. Financial responsibility -- Applicability.

(a) Operators of all wells, not otherwise required to demonstrate financial responsibility through bonding or otherwise in accordance with the provisions of article six of this chapter, shall, no later than July 1, 1993, demonstrate financial responsibility in accordance with the methods and in the amounts prescribed by this article.

(b) If the operator demonstrates to the satisfaction of the director that an unjust hardship to an operator will occur as a result of the financial responsibility requirements of this article:

(1) The director may suspend such financial responsibility requirements to a date no later than July 1, 1995; or

(2) The director may authorize an operator to demonstrate such financial responsibility by supplying twenty percent of any required amount by no later than July 1, 1994; forty percent no later than July 1, 1995; sixty percent no later than July 1, 1996; eighty percent by July 1, 1997; and one hundred percent by July 1, 1998.

(c) The operator making a demonstration of financial responsibility pursuant to this section shall provide the director with information sufficient to establish the location and identification of the well, any well completion, recompletion and reworking records which may exist and such other information as the director may reasonably require.

§22-10-5. Financial responsibility -- Amount.

The financial responsibility requirements applicable to all wells shall be as set forth in section twenty-six, article six of this chapter, except that the amount of financial responsibility through bonding or otherwise, as provided for in said section, for an individual well shall be in the amount of $5,000. In lieu of separate, single well bonds, an operator may either furnish a blanket bond in the sum of $50,000 in accordance with the provisions of subsection (c) of section twenty-six, article six of this chapter, or if the operator has previously provided a blanket bond in the sum of $50,000 which remains in effect, the operator may cover wells subject to this article by such existing blanket bond.

§22-10-6. Establishment of priorities for plugging expenditures.

(a) The director shall promulgate legislative rules establishing a priority system by which available funds from the Oil and Gas Reclamation Fund, established pursuant to §22-6-29 of this code, will be expended to plug abandoned wells. The rules shall, at a minimum, establish three primary classifications to be as follows:

(1) Wells which are an immediate threat to the environment or which may hinder or impede the development of mineral resources of this state so as to require immediate plugging;

(2) Wells which are not an immediate threat to the environment or which do not hinder or impede the development of mineral resources of this state, but which should be plugged consistent with available resources; and

(3) Wells which are not a threat to the environment and which do not hinder or impede the development of mineral resources of this state and for which plugging may be deferred for an indefinite period.

(b) The classifications shall, among other things, take into consideration the following factors, as appropriate:

(1) The age of the well;

(2) The length of time the well has been abandoned;

(3) The casing remaining in the well;

(4) The presence of any leaks either at the surface or underground;

(5) The possibility or existence of groundwater contamination;

(6) Whether the well is located in an area to be developed for enhanced recovery;

(7) Whether the well hinders or impedes mineral development; and

(8) Whether the well is located in close proximity to population.

(c) Notwithstanding the other provisions of this section, the bond posted for the well shall first be used to plug the well and mitigate environmental issues related to oil and gas development on the land where the well is located if:

(1) The bond is forfeited as a result of failure to plug the abandoned well, repair the well that is causing immediate threat to the environment, or which hinders or impedes the development of mineral resources of this state; or

(2) The well operator was cited for and then failed to correct an immediate threat to the environment or hinderance or impediment to the development of mineral resources of this state; or

(3) The operator failed to reclaim the surface disturbance causing immediate threat to the environment or which hinders or impedes the development of mineral resources of this state.

§22-10-7. Right of interested person to plug, replug and reclaim abandoned wells.

(a) Upon twenty days' advance written notice, it shall be lawful for any interested person, the operator or the director to enter upon the premises where any abandoned well is situated and properly plug or replug such abandoned well, and to reclaim any area disturbed by such plugging or replugging in the manner required by article six of this chapter. Such notice shall be served by certified mail, returned receipt requested, or such other manner as is sufficient for service of process in a civil action, upon any owner of the surface of the land upon which such abandoned well exists, upon any oil and gas lessee of record with the director and upon any owner or operator of such abandoned well of record with the director, or in the event there is no such lessee, owner or operator of record with the director, by posting such notice in a conspicuous place at or near such abandoned well. The notice given the surface owner shall include a statement advising the surface owner of the right to repairs or damages as provided in this section and the potential right to take any casing, equipment or other salvage. Such notice shall be on forms approved by the director.

(b) Any interested person who plugs a well pursuant to the provisions of this section shall, to the extent damage or disturbance results from such plugging, either repair the damage or disturbance or compensate the surface owner for (i) the reasonable cost of repairing or replacing any water well, (ii) the reasonable value of any crops destroyed, damaged or prevented from reaching market, (iii) the reasonable cost of repair to personal property up to the value of the replacement value of personal property of like age, wear and quality, (iv) lost income or expense incurred, and (v) reasonable costs to reclaim or repair real property including roads.

(c) The interested person who is plugging the well pursuant to the provisions of this section, may elect to take any casing, equipment or other salvage which may result from the plugging of such abandoned well by including notice of such election in the written notice mandated by subsection (a) of this section. Should such interested person who is plugging the well not give such notice of election, the surface owner may elect to take any casing, equipment or other salvage which may result from the plugging of such abandoned well by giving written notice of such election to the interested person who is plugging the well at least ten days in advance of such plugging. In the event such notice is given, such interested person who is plugging the well may leave such casing, equipment or salvage at a location which will not adversely affect any reclamation of a disturbed area. In the event the surface owner does not give notice of an election to take such casing, equipment or salvage as provided herein, such interested person who plugs the well shall properly dispose thereof. Nothing in this subsection shall be construed to require or create a duty upon such interested person who plugs the well to protect or pull casing or otherwise take any action or incur any expense to retrieve or protect any casing, equipment or salvageable material: Provided, That nothing contained in this section may be construed to relieve the interested person from the responsibility to perform in accordance with the requirements of this article, article six of this chapter, or any condition of the permit.

(d) Prior to releasing any bond which is obtained in connection with plugging or replugging an abandoned well under the provisions of this section, the director shall obtain from the interested person who has obtained the bond a copy of a letter that such interested person has sent to the surface owner advising that reclamation has been completed.

(e) Where an interested person who intends to plug an abandoned well pursuant to this section is unable to obtain a bond in the full amount required by section twenty-six, article six of this chapter, the director may authorize a bond in a lesser amount; which lesser amount shall be equal or greater than the estimated cost of reclaiming the surface areas disturbed by the plugging operation: Provided, That an owner or operator of a well shall comply with the financial responsibility provisions of section five of this article and section twenty-six, article six of this chapter.

(f) In the event the owner or operator of a well fails or has failed to plug a well in accordance with laws and rules in effect at the time the well is or was first subject to plugging requirements, any interested person who plugs or replugs such well pursuant to the provisions of this section may recover from the owner or operator of such well all reasonable costs incidental to such plugging or replugging, including any compensation provided for in this section. In the event funds from the oil and gas reclamation fund established pursuant to section twenty-nine, article six of this chapter are used to plug or replug such well, the director shall be entitled to recover from the owner or operator of such well any amounts so expended from the fund. Any amounts so recovered by the director shall be deposited in said fund.

§22-10-8. Arbitration; fees and costs.

(a) If the interested person who plugs a well and the surface owner are unable to agree as to the adequacy of the repairs performed or the amount of compensation to which the surface owner may be entitled, either party upon written notice to the other may elect to have such issue finally determined by binding arbitration pursuant to article ten, chapter fifty-five of this code.

(b) The adequacy of the repairs or compensation to which the surface owner may be entitled shall, if such election is made, be determined by a panel of three disinterested arbitrators. The first arbitrator shall be chosen by the party electing to arbitrate in such person's notice of election; the second arbitrator shall be chosen by the other party within ten days after receipt of the notice of election; and the third arbitrator shall be chosen jointly by the first two arbitrators within twenty days thereafter. If they are unable to agree upon the third arbitrator within twenty days, then the two arbitrators are hereby empowered to and shall forthwith submit the matter to the court under the provisions of section one, article ten, chapter fifty-five of this code, so that, among other things, the third arbitrator can be chosen by the judge of the circuit court of the county wherein the surface estate lies.

(c) The following persons shall be deemed interested and not be appointed as arbitrators: Any person who is personally interested in the land on which the plugging is being performed or has been performed, or in any interest or right therein, or in the compensation and any damages to be awarded therefor, or who is related by blood or marriage to any person having such personal interest, or who stands in the relation of guardian and ward, master and servant, principal and agent, or partner, real estate broker, or surety to any person having such personal interest, or who has enmity against or bias in favor of any person who has such personal interest or who is the owner of, or interested in, such land or the oil and gas development thereof. No person shall be deemed interested or incompetent to act as arbitrator by reason of being an inhabitant of the county, district or municipal corporation wherein the land is located, or holding an interest in any other land therein.

(d) The panel of arbitrators shall hold hearings and take such testimony and receive such exhibits as shall be necessary to determine the required repairs or the amount of compensation to be paid to the surface owner. However, no award requiring repairs or compensation shall be made to the surface owner unless the panel of arbitrators has first viewed the surface estate in question. A transcript of the evidence may be made but shall not be required.

(e) Each party shall pay the compensation of such party's own arbitrator and one half of the compensation of the third arbitrator, and such party's own costs.

§22-10-9. Civil penalties.

(a) Any person who fails to plug an abandoned well within thirty days, or upon a showing of good cause, within a longer period as determined by the director not to exceed one hundred eighty days, from the date such plugging is ordered by the director, shall be liable for a civil penalty of $25,000 which penalty shall be recovered in a civil action in the circuit court wherein the abandoned well is located.

(b) The net proceeds of all civil penalties collected pursuant to subsection (a) of this section shall be deposited into the oil and gas reclamation fund established pursuant to section twenty-nine, article six of this chapter.

§22-10-10. Rulemaking; procedure; judicial review.

(a) The director shall have the power and authority to promulgate legislative rules, procedural rules and interpretive rules in accordance with the provisions of chapter twenty-nine-a of this code in order to carry out and implement the provisions of this article.

(b) Any hearings or proceedings before the director on any matter other than rule making shall be conducted and heard by the director or a representative designated by the director and shall be in accordance with the provisions of article five, chapter twenty-nine-a of this code.

(c) Any person having an interest which is or may be adversely affected, who is aggrieved by an order of the director issued pursuant to this article, or by the issuance or denial of a permit pursuant to this article or by the permit's terms or conditions, is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code shall apply to and govern such judicial review with like effect as if the provisions of said section four were set forth in extenso in this section.

(d) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

§22-10-11. Existing rights and remedies preserved.

(a) It is the purpose of this article to provide additional and cumulative remedies to address abandoned wells in this state and nothing herein contained shall abridge or alter rights of action or remedies now or hereafter existing, nor shall any provisions in this article, or any act done by virtue of this article, be construed as estopping the state, municipalities, public health officers or persons in the exercise of their rights to suppress nuisance or to abate any pollution now or hereafter existing, or to recover damages.

(b) An order of the director, the effect of which is to find that an abandoned well exists, or in ordering an abandoned well to be plugged, or any other order, or any violation of any of the provisions of this article shall give rise to no presumptions of law or findings of fact inuring to or for the benefit of persons other than the State of West Virginia.

(c) Nothing contained in this article shall be construed to place any duty or responsibility on the landowner, well owner or operator or lessee to plug a well in addition to those set forth in article six of this chapter.

§22-10-12. Provisions of article supplemental.

The provisions of this article shall be in addition to and supplement all other provisions of article eight of this chapter and rights with respect to plugging or replugging wells. Nothing in this article shall be construed to eliminate the permit requirement for plugging and replugging wells.

§22-11-1. Short title.

This article may be known and cited as the Water Pollution Control Act.

§22-11-2. Declaration of policy.

(a) It is declared to be the public policy of the State of West Virginia to maintain reasonable standards of purity and quality of the water of the state consistent with: (1) Public health and public enjoyment thereof; (2) the propagation and protection of animal, bird, fish, aquatic and plant life; and (3) the expansion of employment opportunities, maintenance and expansion of agriculture and the provision of a permanent foundation for healthy industrial development.

(b) It is also the public policy of the State of West Virginia that the water resources of this state with respect to the quantity thereof be available for reasonable use by all of the citizens of this state.

§22-11-3. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(1) "Activity" or "activities" means any activity or activities for which a permit is required by section seven of this article;

(2) "Board" means the environmental quality board, provided in article three, chapter twenty-two-b of this code;

(3) "Chief" means the director of the division of water and waste management of the Department of Environmental Protection;

(4) "Code" means the Code of West Virginia, 1931, as amended;

(5) "Department" means the Department of Environmental Protection;

(6) "Disposal system" means a system for treating or disposing of sewage, industrial wastes or other wastes, or the effluent therefrom, either by surface or underground methods, and includes sewer systems, the use of subterranean spaces, treatment works, disposal wells and other systems;

(7) "Disposal well" means any well drilled or used for the injection or disposal of treated or untreated sewage, industrial wastes or other wastes into underground strata;

(8) "Effluent limitation" means any restriction established on quantities, rates and concentrations of chemical, physical, biological and other constituents which are discharged into the waters of this state;

(9) "Establishment" means an industrial establishment, mill, factory, tannery, paper or pulp mill, mine, colliery, breaker or mineral processing operation, quarry, refinery, well and each and every industry or plant or works in the operation or process of which industrial wastes, sewage or other wastes are produced;

(10) "Industrial user" means those industries identified in the standard industrial classification manual, United States Bureau of the Budget, 1967, as amended and supplemented, under the category "division d--manufacturing" and other classes of significant waste producers identified under regulations issued by the director or the administrator of the United States environmental protection agency;

(11) "Industrial wastes" means any liquid, gaseous, solid or other waste substance, or a combination thereof, resulting from or incidental to any process of industry, manufacturing, trade or business, or from or incidental to the development, processing or recovery of any natural resources; and the admixture with such industrial wastes of sewage or other wastes, as hereinafter defined, is also "industrial waste" within the meaning of this article;

(12) "Other wastes" means garbage, refuse, decayed wood, sawdust, shavings, bark and other wood debris and residues resulting from secondary processing; sand, lime, cinders, ashes, offal, night soil, silt, oil, tar, dyestuffs, acids, chemicals, heat or all other materials and substances not sewage or industrial wastes which may cause or might reasonably be expected to cause or to contribute to the pollution of any of the waters of the state;

(13) "Outlet" means the terminus of a sewer system or the point of emergence of any water-carried sewage, industrial wastes or other wastes, or the effluent therefrom, into any of the waters of this state, and includes a point source;

(14) "Person", "persons" or "applicant" means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; State of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry; sanitary district; public service district; drainage district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever;

(15) "Point source" means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock or vessel or other floating craft, from which pollutants are or may be discharged;

(16) "Pollutant" means industrial wastes, sewage or other wastes as defined in this section;

(17) "Pollution" means the man-made or man-induced alteration of the chemical, physical, biological and radiological integrity of the waters of the state;

(18) "Publicly owned treatment works" means any treatment works owned by the state or any political subdivision thereof, any municipality or any other public entity, for the treatment of pollutants;

(19) "Secretary" means the Secretary of the Department of Environmental Protection or such other person to whom the secretary has delegated authority or duties pursuant to section six or eight, article one of this chapter;

(20) "Sewage" means water-carried human or animal wastes from residences, buildings, industrial establishments or other places, together with such groundwater infiltration and surface waters as may be present;

(21) "Sewer system" means pipelines or conduits, pumping stations, force mains and all other constructions, facilities, devices and appliances appurtenant thereto, used for collecting or conducting sewage, industrial wastes or other wastes to a point of disposal or treatment;

(22) "Treatment works" means any plant, facility, means, system, disposal field, lagoon, pumping station, constructed drainage ditch or surface water intercepting ditch, diversion ditch above or below the surface of the ground, settling tank or pond, earthen pit, incinerator, area devoted to sanitary landfills or other works not specifically mentioned herein, installed for the purpose of treating, neutralizing, stabilizing, holding or disposing of sewage, industrial wastes or other wastes or for the purpose of regulating or controlling the quality and rate of flow thereof;

(23) "Water resources", "water" or "waters" means any and all water on or beneath the surface of the ground, whether percolating, standing, diffused or flowing, wholly or partially within this state, or bordering this state and within its jurisdiction, and includes, without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds (except farm ponds, industrial settling basins and ponds and water treatment facilities), impounding reservoirs, springs, wells, watercourses and wetlands; and

(24) "Well" means any shaft or hole sunk, drilled, bored or dug into the earth or into underground strata for the extraction or injection or placement of any liquid or gas, or any shaft or hole sunk or used in conjunction with such extraction or injection or placement. The term "well" does not include any shaft or hole sunk, drilled, bored or dug into the earth for the sole purpose of core drilling or pumping or extracting therefrom potable, fresh or usable water for household, domestic, industrial, agricultural or public use.

§22-11-4. General powers and duties of director with respect to pollution.

(a) In addition to all other powers and duties the director has and may exercise, subject to specific grants of authority to the chief or the board in this article or elsewhere in this code, the director has the following powers and authority and shall perform the following duties:

(1) To perform any and all acts necessary to carry out the purposes and requirements of this article and of the "Federal Water Pollution Control Act," 33 U.S.C. §1251, et seq., as amended, relating to this state's participation in the "National Pollutant Discharge Elimination System," 33 U.S.C. §1342, established under that act;

(2) To encourage voluntary cooperation by all persons in the conservation, improvement and development of water resources and in controlling and reducing the pollution of the waters of this state, and to advise, consult and cooperate with all persons, all agencies of this state, the federal government or other states, and with interstate agencies in the furtherance of the purposes of this article, and to this end and for the purpose of studies, scientific or other investigations, research, experiments and demonstrations pertaining thereto, the division may receive moneys from such agencies, officers and persons on behalf of the state. The division shall pay all moneys so received into a special fund hereby created in the state Treasury, which fund shall be expended under the direction of the director solely for the purpose or purposes for which the grant, gift or contribution was made;

(3) To encourage the formulation and execution of plans by cooperative groups or associations of municipal corporations, industries, industrial users, and other users of waters of the state, who, jointly or severally, are or may be the source of pollution of such waters, for the control and reduction of pollution;

(4) To encourage, participate in, or conduct or cause to be conducted studies, scientific or other investigations, research, experiments and demonstrations relating to the water resources of the state and water pollution and its causes, control and reduction, and to collect data with respect thereto, all as may be deemed advisable and necessary to carry out the purposes of this article;

(5) To study and investigate all problems concerning water flow, water pollution and the control and reduction of pollution of the waters of the state, and to make reports and recommendations with respect thereto;

(6) To collect and disseminate information relating to water pollution and the control and reduction thereof;

(7) To develop a public education and promotion program to aid and assist in publicizing the need for, and securing support for, pollution control and abatement;

(8) To sample ground and surface water with sufficient frequency to ascertain the standards of purity or quality from time to time of the waters of the state;

(9) To develop programs for the control and reduction of the pollution of the waters of the state;

(10) To exercise general supervision over the administration and enforcement of the provisions of this article, and all rules, permits and orders issued pursuant to the provisions of this article, article eleven-a of this chapter and article one, chapter twenty-two-b of this code;

(11) In cooperation with the college of engineering at West Virginia University and the schools and departments of engineering at other institutions of higher education operated by this state, to conduct studies, scientific or other investigations, research, experiments and demonstrations in an effort to discover economical and practical methods for the elimination, disposal, control and treatment of sewage, industrial wastes, and other wastes, and the control and reduction of water pollution, and to this end, the director may cooperate with any public or private agency and receive therefrom, on behalf of the state, and for deposit in the state Treasury, any moneys which such agency may contribute as its part of the expenses thereof, and all gifts, donations or contributions received as aforesaid shall be expended by the director according to the requirements or directions of the donor or contributor without the necessity of an appropriation therefor, except that an accounting thereof shall be made in the fiscal reports of the division;

(12) To require the prior submission of plans, specifications, and other data relative to, and to inspect the construction and operation of, any activity or activities in connection with the issuance and revocation of such permits as are required by this article, article eleven-a of this chapter or the rules promulgated thereunder;

(13) To require any and all persons directly or indirectly discharging, depositing or disposing of treated or untreated sewage, industrial wastes or other wastes, or the effluent therefrom, into or near any waters of the state or into any underground strata, and any and all persons operating an establishment which produces or which may produce or from which escapes, releases or emanates or may escape, release or emanate treated or untreated sewage, industrial wastes or other wastes, or the effluent therefrom, into or near any waters of the state or into any underground strata, to file with the division such information as the director may require in a form or manner prescribed for such purpose, including, but not limited to, data as to the kind, characteristics, amount and rate of flow of any such discharge, deposit, escape, release or disposition;

(14) To adopt, modify, or repeal procedural rules and interpretive rules in accordance with the provisions of chapter twenty-nine-a of this code administering and implementing the powers, duties and responsibilities vested in the director by the provisions of this article and article eleven-a of this chapter;

(15) To cooperate with interstate agencies for the purpose of formulating, for submission to the Legislature, interstate compacts and agreements relating to: (A) The control and reduction of water pollution; and (B) the state's share of waters in watercourses bordering the state;

(16) To adopt, modify, repeal and enforce rules, in accordance with the provisions of chapter twenty-nine-a of this code: (A) Implementing and making effective the declaration of policy contained in section one of this article and the powers, duties and responsibilities vested in the director and the chief by the provisions of this article and otherwise by law; (B) preventing, controlling and abating pollution; and (C) facilitating the state's participation in the "National Pollutant Discharge Elimination System" pursuant to the "Federal Water Pollution Control Act," as amended: Provided, That no rule adopted by the director shall specify the design of equipment, type of construction or particular method which a person shall use to reduce the discharge of a pollutant; and

(17) To advise all users of water resources as to the availability of water resources and the most practicable method of water diversion, use, development and conservation.

(b) Whenever required to carry out the objectives of this article or article eleven-a of this chapter the director shall require the owner or operator of any point source or establishment to: (i) Establish and maintain such records; (ii) make such reports; (iii) install, use and maintain such monitoring equipment or methods; (iv) sample such effluents in accordance with such methods, at such locations, at such intervals and in such manner as the director shall prescribe; and (v) provide such other information as the director may reasonably require.

(c) The director upon presentation of credentials: (i) Has a right of entry to, upon or through any premises in which an effluent source is located or in which any records required to be maintained under subsection (b) of this section are located; and (ii) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under subsection (b) of this section and sample any streams in the area as well as sample any effluents which the owner or operator of such source is required to sample under subsection (b) of this section. Nothing in this subsection eliminates any obligation to follow any process that may be required by law.

(d) The director is hereby authorized and empowered to investigate and ascertain the need and factual basis for the establishment of public service districts as a means of controlling and reducing pollution from unincorporated communities and areas of the state, investigate and ascertain, with the assistance of the Public Service Commission, the financial feasibility and projected financial capability of the future operation of any such public service district or districts, and to present reports and recommendations thereon to the county commissions of the areas concerned, together with a request that such county commissions create a public service district or districts, as therein shown to be needed and required and as provided in article thirteen-a, chapter sixteen of this code. In the event a county commission fails to act to establish a county-wide public service district or districts, the director shall act jointly with the Commissioner of the Bureau of Public Health to further investigate and ascertain the financial feasibility and projected financial capability and, subject to the approval of the Public Service Commission, order the county commission to take action to establish such public service district or districts as may be necessary to control, reduce or abate the pollution, and when so ordered the county commission members must act to establish such a county-wide public service district or districts.

(e) The director has the authority to enter at all reasonable times upon any private or public property for the purpose of making surveys, examinations, investigations and studies needed in the gathering of facts concerning the water resources of the state and their use, subject to responsibility for any damage to the property entered. Upon entering, and before making any survey, examination, investigation and study, such person shall immediately present himself or herself to the occupant of the property. Upon entering property used in any manufacturing, mining or other commercial enterprise, or by any municipality or governmental agency or subdivision, and before making any survey, examination, investigation and study, such person shall immediately present himself or herself to the person in charge of the operation, and if he or she is not available, to a managerial employee. All persons shall cooperate fully with the person entering such property for such purposes. Upon refusal of the person owning or controlling such property to permit such entrance or the making of such surveys, examinations, investigations and studies, the director may apply to the circuit court of the county in which such property is located, or to the judge thereof in vacation, for an order permitting such entrance or the making of such surveys, examinations, investigations and studies; and jurisdiction is hereby conferred upon such court to enter such order upon a showing that the relief asked is necessary for the proper enforcement of this article: Provided, That nothing in this subsection eliminates any obligation to follow any process that may be required by law.

§22-11-5. Water areas beautification; investigations; law enforcement.

The division shall maintain a program and practices in the husbandry of waters of the state and the lands immediately adjacent thereto. The director shall make such investigations and surveys, conduct such schools and public meetings and take such other steps as may be expedient in the conservation, beautification, improvement and use of all such water areas of the state. The director shall cooperate with the Division of Natural Resources' chief law-enforcement officer in enforcing the provisions of law prohibiting the disposal of litter in, along and near such water areas.

§22-11-6. Requirement to comply with standards of water quality and effluent limitations.

(a) All persons affected by rules establishing water quality standards and effluent limitations shall promptly comply with the rules: Provided, That:

(1) Where necessary and proper, the secretary may specify a reasonable time for persons not complying with the standards and limitations to comply with the rules and, upon the expiration of that period of time, the secretary shall revoke or modify any permit previously issued which authorized the discharge of treated or untreated sewage, industrial wastes, or other wastes into the waters of this state which result in reduction of the quality of the waters below the standards and limitations established therefor by rules of the board or secretary;

(2) For purposes of both this article and sections 309 and 505 of the federal Water Pollution Control Act, compliance with a permit issued pursuant to this article shall be considered compliance for purposes of both this article and sections 301, 302, 303, 306, 307, and 403 of the federal Water Pollution Control Act and with all applicable state and federal water quality standards, except for any standard imposed under section 307 of the federal Water Pollution Control Act for a toxic pollutant injurious to human health. Notwithstanding any provision of this code or rule or permit condition to the contrary, water quality standards themselves shall not be considered effluent standards or limitations for the purposes of both this article and sections 309 and 505 of the federal Water Pollution Control Act and may not be independently or directly enforced or implemented except through the development of terms and conditions of a permit issued pursuant to this article. Nothing in this section, however, prevents the secretary from modifying, reissuing, or revoking a permit during its term. The provisions of this section addressing compliance with a permit are intended to apply to all existing and future discharges and permits without the need for permit modifications; and

(3) The Legislature finds that there are concerns within West Virginia regarding the applicability of the research underlying the federal selenium criteria to a state such as West Virginia which has high precipitation rates and free-flowing streams, and that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia and, further, that considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium, and to better understand the chemical reactions related to selenium mobilization in water.

(4) The Legislature finds that the EPA has been contemplating a revision to the federally recommended criteria for several years, but has yet to issue a revised standard.

(5) Because of the uncertainty regarding the applicability of the current selenium standard, the secretary is hereby directed to develop within six months of the effective date of this subdivision an implementation plan for the current selenium standard that will include, at minimum, the following:

(A) Implementing the criteria as a threshold standard;

(B) A monitoring plan that will include chemical speciation of any selenium discharge;

(C) A fish population survey and monitoring plan that will be implemented at a representative location to assess any possible impacts from selenium discharges if the threshold criteria are exceeded; and

(D) The results of the monitoring will be reported to the department for use in the development of state-specific selenium criteria.

(6) Within 24 months of the effective date of this subdivision, the secretary shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code which establish a state-specific selenium standard that protects aquatic life. Concurrent with proposing a legislative rule, the secretary shall also submit the proposed standard and supporting documentation to the administrator of the Environmental Protection Agency. The secretary shall also consult with and consider research and data from the West Virginia Water Research Institute at West Virginia University, the regulated community, and other appropriate groups in developing the state-specific selenium standard.

(7) Within 30 days of the effective date of this section, the secretary shall promulgate an emergency rule revising the statewide aluminum water quality criteria for the protection of aquatic life to incorporate aluminum criteria values using a hardness-based equation. Concurrent with issuing an emergency rule, the secretary shall also submit the proposed revisions and supporting documentation to the administrator of the Environmental Protection Agency.

(8) The secretary shall, within 90 days of receipt of any completed request for a site-specific water quality criterion, approve or deny the request. Any denial or approval of an application shall detail the specific basis for the denial or approval and any revisions needed to the application. Any denial or approval of a request may be appealed to the environmental quality board pursuant to §22-11-21 of this code.

(b) The secretary may issue water pollution control permits that contain water quality-based effluent limits that are adjusted to reflect credit for pollutants in the permittee’s intake water (net limits).

 (c) The secretary may not set benchmarks for substances in, or conditions of, discharges of stormwater that are more restrictive than the acute aquatic life water quality criterion, the federal benchmark, the chronic aquatic life water quality criterion, or the ambient aquatic life advisory concentration.

(d) Upon request by an applicant for a permit issued in accordance with this article, the secretary shall establish effluent limits for stormwater that are developed in accordance with mixing zones that are appropriate for relevant conditions.

(e) The secretary shall promptly develop guidance for determining how benchmarks in permits issued pursuant to this article demonstrate the adequacy of stormwater best management practices.

§22-11-7. Cooperation with other governments and agencies.

The office of water resources is hereby designated as the water pollution control agency for this state for all purposes of federal legislation and is hereby authorized to take all action necessary or appropriate to secure to this state the benefits of said legislation. In carrying out the purposes of this section, the chief is hereby authorized to cooperate with the United States environmental protection agency and other agencies of the federal government, other states, interstate agencies and other interested parties in all matters relating to water pollution, including the development of programs for controlling and reducing water pollution and improving the sanitary conditions of the waters of the state; to apply for and receive, on behalf of this state, funds made available under the aforesaid federal legislation on condition that all moneys received from any federal agency as herein provided shall be paid into the state Treasury and shall be expended, under the direction of the director, solely for purposes for which the grants are made; to approve projects for which applications for loans or grants under the federal legislation are made by any municipality (including any city, town, district or other public body created by or pursuant to the laws of this state and having jurisdiction over the disposal of sewage, industrial wastes or other wastes) or agency of this state or by any interstate agency; and to participate through authorized representatives in proceedings under the federal legislation to recommend measures for the abatement of water pollution originating in this state. The Governor may give consent on behalf of this state to requests by the administrator of the United States environmental protection agency to the Attorney General of the United States for the bringing of actions for the abatement of such pollution. Whenever a federal law requires the approval or recommendation of a state agency or any political subdivision of the state in any matter relating to the water resources of the state, the director, subject to approval of the Legislature, is hereby designated as the sole person to give the approval or recommendation required by the federal law, unless the federal law specifically requires the approval or recommendation of some other state agency or political subdivision of the state.

§22-11-7a. Certification agreements; required provisions.

(a) Any applicant for the water quality certification that seeks certification of activities covered by the United States Army Corps of Engineers permits issued in accordance with 33 U.S.C. §1344 and 33 C.F.R. Parts 323 or 330 may be issued a certification in accordance with the legislative rules entitled Rules for Individual State Certification of Activities Requiring a Federal Permit, 47 C.S.R. 5A.

(1) The proposed activity shall comply with all applicable state and federal laws, rules, and regulations.

(2) The secretary shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code, for the purpose of implementing the provisions of this section which rules shall include, but not be limited to, the following:

(A) Establishing all necessary operational and performance requirements for a person undertaking activities covered by this section;

(B) Modifying the provisions of this section, when necessary and appropriate to bring the provisions of this section into compliance with state or federal law or regulation; and

(C) Establishing the specific operational requirements for the activity consistent with this section appropriate to protect the waters of this state during and following the activity.

(b) The Joint Committee on Government and Finance may undertake or facilitate a study of the impact of mountaintop mining and valley fills upon the State of West Virginia.

(1) To facilitate the study, the Joint Committee on Government and Finance is further authorized to coordinate with and seek funding from appropriate federal agencies to facilitate the study including, but not limited to: The federal Environmental Protection Agency, Army Corps of Engineers, Office of Surface Mining Reclamation and Enforcement, and Fish and Wildlife Service.

(2) In order to facilitate the research, the Joint Committee on Government and Finance shall appoint a council to coordinate and direct the research. The composition of the council shall be determined by the joint committee, but shall include representatives from the various interested parties as determined solely by the joint committee.

§22-11-7b. Water quality standards; implementation of antidegradation procedures; procedure to determine comp1iance with the biologic component of the narrative water quality standard.

NOTE: During the 2017 Regular Session of the Legislature, this section was amended by House Bill 2506 and Senate Bill 687 and there has been no judicial ruling to determine which, if either, amendments prevail. Both versions are provided here.

As amended by House Bill 2506:

(a) All authority to propose rules for legislative approval and implement water quality standards is vested in the Secretary of the Department of Environmental Protection.

(b) All meetings with the secretary or any employee of the department and any interested party which are convened for the purpose of making a decision or deliberating toward a decision as to the form and substance of the rule governing water quality standards or variances thereto shall be held in accordance with article nine-a, chapter six of this code. When the secretary is considering the form and substance of the rules governing water quality standards, the following are not meetings pursuant to article nine-a, chapter six of this code: (i) Consultations between the department's employees or its consultants, contractors or agents; (ii) consultations with other state or federal agencies and the department's employees or its consultants, contractors or agents; or (iii) consultations between the secretary, the department's employees or its consultants, contractors or agents with any interested party for the purpose of collecting facts and explaining state and federal requirements relating to a site specific change or variance.

(c) In order to carry out the purposes of this chapter, the secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code setting standards of water quality applicable to both the surface waters and groundwaters of this state. Standards of quality with respect to surface waters shall protect the public health and welfare, wildlife, fish and aquatic life and the present and prospective future uses of the water for domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial uses thereof. The water quality standards of the secretary may not specify the design of equipment, type of construction or particular method which a person shall use to reduce the discharge of a pollutant. For implementing human health criteria for the protection of drinking water, the Secretary shall calculate permit limits using the harmonic mean flow and may determine the point of compliance for a permittee’s discharge pursuant to the mixing zone provisions of the Legislative rule entitled Requirements Governing Water Quality Standards, 47 C.S.R. 2: Provided, That the Secretary may allow mixing zones to overlap, but not to go beyond a point one-half mile upstream of a public water supply. At locations where mixing zones are allowed to overlap, the Secretary shall require permittees to indicate on their required signage an indication that mixing zones overlap in a particular vicinity.

 (d) The secretary shall establish the antidegradation implementation procedures as required by 40 C. F. R. 131.12(a) which apply to regulated activities that have the potential to affect water quality. The secretary shall propose for legislative approval, pursuant to article three, chapter twenty-nine-a of the code, legislative rules to establish implementation procedures which include specifics of the review depending upon the existing uses of the water body segment that would be affected, the level of protection or "tier" assigned to the applicable water body segment, the nature of the activity and the extent to which existing water quality would be degraded. Any final classification determination of a water as a Tier 2.5 water (Water of Special Concern) does not become effective until that determination is approved by the Legislature through the legislative rule-making process as provided in article three, chapter twenty-nine-a of the code.

(e) All remining variances shall be applied for and considered by the secretary and any variance granted shall be consistent with 33 U. S. C. Section 1311(p) of the Federal Water Control Act. At a minimum, when considering an application for a remining variance the secretary shall consider the data and information submitted by the applicant for the variance; and comments received at a public comment period and public hearing. The secretary may not grant a variance without requiring the applicant to improve the instream water quality as much as is reasonably possible by applying best available technology economically achievable using best professional judgment. Any such requirement shall be included as a permit condition. The secretary may not grant a variance without a demonstration by the applicant that the coal remining operation will result in the potential for improved instream water quality as a result of the remining operation. The secretary may not grant a variance where he or she determines that degradation of the instream water quality will result from the remining operation.

(f) The secretary shall propose rules measuring compliance with the biologic component of West Virginia's narrative water quality standard requires evaluation of the holistic health of the aquatic ecosystem and a determination that the stream: (i) Supports a balanced aquatic community that is diverse in species composition; (ii) contains appropriate trophic levels of fish, in streams that have flows sufficient to support fish populations; and (iii) the aquatic community is composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach, or, if the assessed reach has insufficient flows to support a fish community, in those downstream reaches where fish are present. The secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code that implement the provisions of this subsection. Rules promulgated pursuant to this subsection may not establish measurements for biologic components of West Virginia's narrative water quality standards that would establish standards less protective than requirements that exist at the time of enactment of the amendments to this subsection by the Legislature during the 2012 regular session.

As amended by Senate Bill 687:

(a) All authority to promulgate rules and implement water quality standards is vested in the Secretary of the Department of Environmental Protection.

(b) All meetings with the secretary or any employee of the department and any interested party which are convened for the purpose of making a decision or deliberating toward a decision as to the form and substance of the rule governing water quality standards or variances thereto shall be held in accordance with the provisions of article nine-a, chapter six of this code. When the secretary is considering the form and substance of the rules governing water quality standards, the following are not meetings pursuant to article nine-a, chapter six of this code: (i) Consultations between the department’s employees or its consultants, contractors or agents; (ii) consultations with other state or federal agencies and the department’s employees or its consultants, contractors or agents; or (iii) consultations between the secretary, the department’s employees or its consultants, contractors or agents with any interested party for the purpose of collecting facts and explaining state and federal requirements relating to a site specific change or variance.

(c) In order to carry out the purposes of this chapter, the secretary shall promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code setting standards of water quality applicable to both the surface waters and groundwaters of this state. Standards of quality with respect to surface waters shall protect the public health and welfare, wildlife, fish and aquatic life and the present and prospective future uses of the water for domestic, agricultural, industrial, recreational, scenic and other legitimate beneficial uses thereof. The water quality standards of the secretary may not specify the design of equipment, type of construction or particular method which a person shall use to reduce the discharge of a pollutant.

(d) The secretary shall establish the antidegradation implementation procedures as required by 40 C. F. R. 131.12(a) which apply to regulated activities that have the potential to affect water quality. The secretary shall propose for legislative approval, pursuant to article three, chapter twenty-nine-a of the code, legislative rules to establish implementation procedures which include specifics of the review depending upon the existing uses of the water body segment that would be affected, the level of protection or “tier” assigned to the applicable water body segment, the nature of the activity and the extent to which existing water quality would be degraded. Any final classification determination of a water as a Tier 2.5 water (Water of Special Concern) does not become effective until that determination is approved by the Legislature through the legislative rule-making process as provided in article three, chapter twenty-nine-a of the code.

(e) All remining variances shall be applied for and considered by the secretary and any variance granted shall be consistent with 33 U. S. C. Section 1311(p) of the Federal Water Control Act. At a minimum, when considering an application for a remining variance the secretary shall consider the data and information submitted by the applicant for the variance; and comments received at a public comment period and public hearing. The secretary may not grant a variance without requiring the applicant to improve the instream water quality as much as is reasonably possible by applying best available technology economically achievable using best professional judgment. Any such requirement will be included as a permit condition. The secretary may not grant a variance without a demonstration by the applicant that the coal remining operation will result in the potential for improved instream water quality as a result of the remining operation. The secretary may not grant a variance where he or she determines that degradation of the instream water quality will result from the remining operation.

(f) The secretary shall propose rules measuring compliance with the aquatic life component of West Virginia’s narrative water quality standard requires evaluation of the holistic health of the aquatic ecosystem and a determination that the stream: (i) contains appropriate trophic levels of fish, in streams that have flows sufficient to support fish populations; and (ii) the aquatic community is composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach, or, if the assessed reach has insufficient flows to support a fish community, in those downstream reaches where fish are present. The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that implement the provisions of this subsection. Rules promulgated pursuant to this subsection may not establish measurements for biologic components of West Virginia’s narrative water quality standards that would establish standards less protective than legislatively-approved rules that existed at the time of enactment of the amendments to this subsection by the Legislature during the 2012 regular session.

§22-11-8. Prohibitions; permits required.

(a) The secretary may, after public notice and opportunity for public hearing, issue a permit for the discharge or disposition of any pollutant or combination of pollutants into waters of this state upon condition that the discharge or disposition meets or will meet all applicable state and federal water quality standards and effluent limitations and all other requirements of this article and article three, chapter twenty-two-b of this code. While permits shall contain conditions that are designed to meet all applicable state and federal water quality standards and effluent limitations, water quality standards themselves shall not be incorporated wholesale either expressly or by reference as effluent standards or limitations in a permit issued pursuant to this article.

(b) It is unlawful for any person, unless the person holds a permit therefor from the department, which is in full force and effect, to:

(1) Allow sewage, industrial wastes or other wastes, or the effluent therefrom, produced by or emanating from any point source, to flow into the waters of this state;

(2) Make, cause or permit to be made any outlet, or substantially enlarge or add to the load of any existing outlet, for the discharge of sewage, industrial wastes or other wastes, or the effluent therefrom, into the waters of this state;

(3) Acquire, construct, install, modify or operate a disposal system or part thereof for the direct or indirect discharge or deposit of treated or untreated sewage, industrial wastes or other wastes, or the effluent therefrom, into the waters of this state, or any extension to or addition to the disposal system;

(4) Increase in volume or concentration any sewage, industrial wastes or other wastes in excess of the discharges or disposition specified or permitted under any existing permit;

(5) Extend, modify or add to any point source, the operation of which would cause an increase in the volume or concentration of any sewage, industrial wastes or other wastes discharging or flowing into the waters of the state;

(6) Construct, install, modify, open, reopen, operate or abandon any mine, quarry or preparation plant, or dispose of any refuse or industrial wastes or other wastes from the mine or quarry or preparation plant: Provided, That the department's permit is only required wherever the aforementioned activities cause, may cause or might reasonably be expected to cause a discharge into or pollution of waters of the state, except that a permit is required for any preparation plant: Provided, however, That unless waived in writing by the secretary, every application for a permit to open, reopen or operate any mine, quarry or preparation plant or to dispose of any refuse or industrial wastes or other wastes from the mine or quarry or preparation plant shall contain a plan for abandonment of the facility or operation, which plan shall comply in all respects to the requirements of this article. The plan of abandonment is subject to modification or amendment upon application by the permit holder to the secretary and approval of the modification or amendment by the secretary; or

(7) Operate any disposal well for the injection or reinjection underground of any industrial wastes, including, but not limited to, liquids or gases, or convert any well into such a disposal well or plug or abandon any such disposal well.

(c) Where a person has a number of outlets emerging into the waters of this state in close proximity to one another, the outlets may be treated as a unit for the purposes of this section, and only one permit issued for all the outlets.

§22-11-9. Form of application for permit; information required.

The chief shall prescribe a form of application for all permits for any activity specified in section eight of this article and, notwithstanding any other provision of law to the contrary, no other discharge permit or discharge authorization from any other state department, agency, commission, board or officer is required for such activity except that which is required from the office of miners' health, safety and training pursuant to section seventy-six, article two, chapter twenty-two-a of this code. All applications must be submitted on a form as prescribed above. An applicant shall furnish all information reasonably required by any such form, including without limiting the generality of the foregoing, a plan of maintenance and proposed method of operation of the activity or activities. Until all such required information is furnished, an application is not a complete application. The division shall protect any information (other than effluent data) contained in such permit application form, or other records, reports or plans as confidential upon a showing by any person that such information, if made public, would divulge methods or processes entitled to protection as trade secrets of such person. If, however, the information being considered for confidential treatment is contained in a national pollutant discharge elimination form, the chief or board shall forward such information to the regional administrator of the United States environmental protection agency for concurrence in any determination of confidentiality.

§22-11-10. Water Quality Management Fund established; permit application fees; annual permit fees; dedication of proceeds; rules.

(a) The special revenue fund designated the Water Quality Management Fund established in the State Treasury on July 1, 1989, is hereby continued.

(b) The permit application fees and annual permit fees established and collected pursuant to this section; any interest or surcharge assessed and collected by the secretary; interest accruing on investments and deposits of the fund; and any other moneys designated by the secretary shall be deposited into the Water Quality Management Fund. The secretary shall expend the proceeds of the Water Quality Management Fund for the review of initial permit applications, renewal permit applications, and permit issuance activities.

(c) The secretary shall propose for promulgation, legislative rules in accordance with the provisions of § 29A-1-1 et seq. of this code, to establish a schedule of application fees for all applications except for surface coal mining operations as defined in § 22-3-13 of this code. The appropriate fee shall be submitted by the applicant to the department with the application filed pursuant to this article for any state water pollution control permit or national pollutant discharge elimination system permit. The schedule of application fees shall be designed to establish reasonable categories of permit application fees based upon the complexity of the permit application review process required by the department pursuant to the provisions of this article and the rules promulgated under this article: Provided, That no initial application fee may exceed $15,000 for any facility nor may any permit renewal application fee exceed $5,000. The department may not process any permit application pursuant to this article until the required permit application fee has been received.

(d) The secretary shall propose for promulgation legislative rules in accordance with the provisions of § 29A-1-1 et seq. of this code to establish a schedule of permit fees to be assessed annually upon each person holding a state water pollution control permit or national pollutant discharge elimination system permit issued pursuant to this article except for permits held by surface coal mining operations as defined in § 22-3-1 et seq. of this code. Each person holding a permit shall pay the prescribed annual permit fee to the department pursuant to the rules promulgated under this section: Provided, That no person holding a permit for a home aerator of 600 gallons and under shall be required to pay an annual permit fee. The schedule of annual permit fees shall be designed to establish reasonable categories of annual permit fees based upon the relative potential of categories or permits to degrade the waters of the state: Provided, however, That no annual permit fee may exceed $5,000. The secretary may declare any permit issued pursuant to this article void when the annual permit fee is more than 90 days past due pursuant to the rules promulgated under this section. Voiding of the permit will only become effective upon the date the secretary mails, by certified mail, written notice to the permittee’s last known address notifying the permittee that the permit has been voided.

(e) The secretary shall file a quarterly report with the Joint Committee on Government and Finance setting forth the fees established and collected pursuant to this section.

(f) On July 1, 2022, and each year thereafter, a $1,000 fee shall be assessed for permit applications and a $3,000 fee shall be assessed for permit renewals submitted pursuant to this article for surface coal mining operations, as defined in §22-3-1 et seq. of this code. On July 1, 2022, and each year thereafter, a $2,000 fee shall be assessed for application for major permit modifications and a $1,000 fee for minor permit modifications submitted pursuant to this article for surface coal mining operations, as defined in § 22-3-1 et seq. of this code. On July 1, 2022, and each year thereafter, a $3,000 fee shall be assessed for application for permit reissuance and a $2,000 fee for permit transfer submitted pursuant to this article for surface coal mining operations, as defined in §22-3-1 et seq. of this code. Beginning July 1, 2022, and every year thereafter, an annual permit fee of $2,000 shall be assessed on the issuance anniversary dates of all permits issued pursuant to this article for surface coal mining operations as defined in § 22-3-1 et seq. of this code. Beginning July 1, 2022, and each year thereafter, an application for a water quality certification for activities covered by United States Army Corps of Engineers permits issued pursuant to 33 U.S.C. § 1344 and 33 C.F.R. Parts 323 or 330, in accordance with the legislative rules entitled Rules for Individual State Certification of Activities Requiring a Federal Permit, 47 C.F.R. 5A, must be accompanied by a $500 fee. For all other categories of permitting actions pursuant to this article related to surface coal mining operations, the secretary shall propose for promulgation legislative rules in accordance with the provisions of §29A-1-1 et seq. of this code to establish a schedule of permitting fees.

§22-11-11. Procedure concerning permits required under article; transfer of permits; prior permits.

(a) The chief or his or her duly authorized representatives shall conduct such investigation as is deemed necessary and proper in order to determine whether any such application should be granted or denied. In making such investigation and determination as to any application pertaining solely to sewage, the chief shall consult with the director of the office of environmental health services of the state bureau of public health, and in making such investigation and determination as to any application pertaining to any activity specified in subdivision (7), subsection (b), section eight of this article, the chief shall consult with the director of the state geological and economic survey and the chief of the office of oil and gas of the division, and all such persons shall cooperate with the chief and assist him or her in carrying out the duties and responsibilities imposed upon him or her under the provisions of this article and the rules of the director and board; such cooperation shall include, but not be limited to, a written recommendation approving or disapproving the granting of the permit and the reason or reasons for such recommendation, which recommendation and the reason or reasons therefor shall be submitted to the chief within the specified time period prescribed by rules of the director.

(b) The division's permit shall be issued upon such reasonable terms and conditions as the chief may direct if (1) the application, together with all supporting information and data and other evidence, establishes that any and all discharges or releases, escapes, deposits and disposition of treated or untreated sewage, industrial wastes or other wastes, or the effluent therefrom, resulting from the activity or activities for which the application for a permit was made will not cause pollution of the waters of this state or violate any effluent limitations or any rules of the board or director: Provided, That the chief may issue a permit whenever in his or her judgment the water quality standards of the state may be best protected by the institution of a program of phased pollution abatement which under the terms of the permit may temporarily allow a limited degree of pollution of the waters of the state; and (2) in cases wherein it is required, such applicant shall include the name and address of the responsible agent as set forth in subsection (e), section section six, article six of this chapter.

(c) Each permit issued under this article shall have a fixed term not to exceed five years: Provided, That when the applicant, in accordance with agency rules, has made a timely and complete application for permit reissuance, the permit term may be extended by the chief, at his or her discretion. An extension may be granted for a period not to exceed twelve months beyond its expiration date. Successive extensions may be granted for periods not to exceed twelve months if the chief determines additional time is necessary in order to process the application for permit reissuance. Upon expiration of a permit, a new permit may be issued by the chief upon condition that the discharges or releases, escapes, deposits and disposition thereunder meet or will meet all applicable state and federal water quality standards, effluent limitations and all other requirements of this article.

(d) An application for a permit incident to remedial action in accordance with the provisions of section sixteen of this article shall be processed and decided as any other application for a permit required under the provisions of section eight of this article.

(e) A complete application for any permit shall be acted upon by the chief, and the division's permit delivered or mailed, or a copy of any order of the chief denying any such application delivered or mailed to the applicant by the chief, within a reasonable time period as prescribed by rules of the director.

(f) When it is established that an application for a permit should be denied, the chief shall make and enter an order to that effect, which order shall specify the reasons for such denial, and shall cause a copy of such order to be served on the applicant by registered or certified mail. The chief shall also cause a notice to be served with a copy of such order, which notice shall advise the applicant of the right to appeal to the board by filing a notice of appeal on the form prescribed by the board for such purpose, with the board, in accordance with the provisions of, and within the time specified in, section seven, article one, chapter twenty-two-b of this code. However, an applicant may alter the plans and specifications for the proposed activity and submit a new application for any such permit, in which event the procedure hereinbefore outlined with respect to an original application shall apply.

(g) A permit is transferable to another person upon proper notification to the chief and in accordance with applicable rules. Such transfer does not become effective until it is reflected in the records of the office of water resources.

(h) All permits for the discharge of sewage, industrial wastes or other wastes into any waters of the state issued by the water resources board prior to July 1, 1964, and all permits heretofore issued under the provisions of former article five-a, chapter twenty of this code, and which have not been heretofore revoked, are subject to review, revocation, suspension, modification and reissuance in accordance with the terms and conditions of this article and the rules promulgated thereunder. Any order of revocation, suspension or modification made and entered pursuant to this subsection shall be upon at least twenty days' notice and shall specify the reasons for such revocation, suspension or modification and the chief shall cause a copy of such order, together with a copy of a notice of the right to appeal to the board as provided for in section twelve of this article, to be served upon the permit holder as specified in said section twelve.

§22-11-12. Inspections; orders to compel compliance with permits; service of orders.

After issuance of the division's permit for any activity the director may make field inspections of the work on the activity, and, after completion thereof, may inspect the completed activity, and, from time to time, may inspect the maintenance and operation of the activity.

To compel compliance with the terms and conditions of the division's permit for any activity, the director is hereby authorized, after at least twenty days' notice, to make and enter an order revoking, suspending or modifying, in whole or in part, such permit for cause including, but not limited to, the following:

(1) Violation of any term or condition of the permit;

(2) Obtaining a permit by misrepresentation, or failure to disclose fully all relevant facts; or

(3) Change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge, release, escape, deposit or disposition.

The director shall cause a copy of any such order to be served by registered or certified mail or by a law-enforcement officer upon the person to whom any such permit was issued. The director shall also cause a notice to be served with a copy of such order, which notice shall advise such person of the right to appeal to the board by filing a notice of appeal on the form prescribed by the board for such purpose, with the board, in accordance with the provisions of, and within the time specified in, section seven, article one, chapter twenty-two-b of this code.

§22-11-13. Voluntary water quality monitors; appointment; duties; compensation.

The director is hereby authorized to appoint voluntary water quality monitors to serve at the will and pleasure of the director. All such monitors appointed pursuant hereto shall be eighteen years of age or over and shall be bona fide residents of this state.

Such monitors are authorized to take water samples of the waters of this state at such times and at such places as the director shall direct and to forward such water samples to the director for analysis.

The director is authorized to provide such monitors with such sampling materials and equipment as he or she deems necessary: Provided, That such equipment and materials shall at all times remain the property of the state and shall be immediately returned to the director upon his or her direction.

Such monitors shall not be construed to be employees of this state for any purpose except that the director is hereby authorized to pay such monitors a fee not to exceed 50¢ for each sample properly taken and forwarded to the director as hereinabove provided.

The director shall conduct schools to instruct said monitors in the methods and techniques of water sample taking and issue to said monitors an identification card or certificate showing their appointment and training.

Upon a showing that any water sample as herein provided was taken and analyzed in conformity with standard and recognized procedures, such sample and analysis is admissible in any court of this state for the purpose of enforcing the provisions of this article.

§22-11-14. Information to be filed by certain persons with division; tests.

Any and all persons directly or indirectly discharging or depositing treated or untreated sewage, industrial wastes, or other wastes, or the effluent therefrom, into or near any waters of the state shall file with the director such information as the director may reasonably require on forms prescribed for such purpose, including, but not limited to, data as to the kind, characteristics, amount and rate of flow of such discharge or deposit. If the director has reasonable cause to believe that any establishment is, or may be, polluting the waters of the state, the director may require any person owning, operating or maintaining such establishment to furnish such information as may reasonably be required to ascertain whether such establishment is, or may be causing such pollution, and the director may conduct any test or tests that he or she may deem necessary or useful in making his or her investigation and determination.

§22-11-15. Orders of director to stop or prevent discharges or deposits or take remedial action; service of orders.

If the director, on the basis of investigations, inspections and inquiries, determines that any person who does not have a valid permit issued pursuant to the provisions of this article is causing the pollution of any of the waters of the state, or does on occasions cause pollution or is violating any rule or effluent limitation of the board or the director, he or she shall either make and enter an order directing such person to stop such pollution or the violation of the rule or effluent limitation of the board or director, or make and enter an order directing such person to take corrective or remedial action. Such order shall contain findings of fact upon which the director based the determination to make and enter such order. Such order shall also direct such person to apply forthwith for a permit in accordance with the provisions of sections eight, nine and eleven of this article. The director shall fix a time limit for the completion of such action. Whether the director shall make and enter an order to stop such pollution or shall make and enter an order to take remedial action, in either case the person so ordered may elect to cease operations of the establishment deemed to be the source of such discharge or deposits causing pollution, if the pollution referred to in the director's order shall be stopped thereby.

The director shall cause a copy of any such order to be served by registered or certified mail or by a law-enforcement officer upon such person. The director shall also cause a notice to be served with the copy of such order, which notice shall advise such person of the right to appeal to the board by filing a notice of appeal, on the form prescribed by the board for such purpose, with the board, in accordance with the provisions of article one, chapter twenty-two-b of this code.

§22-11-16. Compliance with orders of director.

Any person upon whom any order of the director or any order of the board in accordance with the provisions of section fifteen of this article, or article one, chapter twenty-two-b of this code has been served shall fully comply therewith.

When such person is ordered to take remedial action and does not elect to cease operation of the establishment deemed to be the source of such pollution, or when such ceasing does not stop the pollution, he or she shall forthwith apply for a permit under and in accordance with the provisions of sections eight, nine and eleven of this article. No such remedial action shall be taken until a permit therefor has been issued; however, receipt of a permit does not in and of itself constitute remedial action.

§22-11-17. Power of eminent domain; procedures; legislative finding.

(a) When any person who is owner of an establishment is ordered by the director to stop or prevent pollution or the violation of the rules of the board or director or to take corrective or remedial action, compliance with which order will require the acquisition, construction or installation of a new treatment works or the extension or modification of or an addition to an existing treatment works, (which acquisition, construction, installation, extension, modification or addition of or to a treatment works pursuant to such order is referred to in this section as "such compliance") such person may exercise the power of eminent domain in the manner provided in chapter fifty-four of this code, to acquire such real property or interests in real property as may be determined by the director to be reasonably necessary for such compliance.

(b) Upon application by such person and after twenty days' written notice to all persons whose property may be affected, the director shall make and enter an order determining the specific real property or interests in real property, if any, which are reasonably necessary for such compliance. In any proceeding under this section, the person seeking to exercise the right of eminent domain herein conferred shall establish the need for the amount of land sought to be condemned and that such land is reasonably necessary for the most practical method for such compliance.

(c) The right of eminent domain herein conferred does not apply to the taking of any dwelling house or for the taking of any land within five hundred feet of any such dwelling house.

(d) The Legislature hereby declares and finds that the taking and use of real property and interests in real property determined to be reasonably necessary for such compliance promotes the health, safety and general welfare of the citizens of this state by reducing and abating pollution in the waters of this state in which the public at large has an interest and otherwise; that such taking and use are necessary to provide and protect a safe, pure and adequate water supply to the municipalities and citizens of the state; that because of topography, patterns of land development and ownership and other factors it is impossible in many cases to effect such compliance without the exercise of the power of eminent domain and that the use of real property or interests in real property to effect such compliance is a public use for which private property may be taken or destroyed.

§22-11-18. Duty to proceed with remedial action promptly upon receipt of permit; progress reports required; finances and funds.

When any person is ordered to take remedial action and does not elect to cease operation of the establishment deemed to be the source of such pollution or when ceasing does not stop the pollution, such person shall immediately upon issuance of the permit required under section sixteen of this article take or begin appropriate steps or proceedings to carry out such remedial action. In any such case it is the duty of each individual offender, each member of a partnership, each member of the governing body of a municipal corporation and each member of the board of directors or other governing body of a private corporation, association or other legal entity whatever, to see that appropriate steps or proceedings to comply with such order are taken or begun immediately. The director may require progress reports, at such time intervals as he or she deems necessary, setting forth the steps taken, the proceedings started and the progress made toward completion of such remedial action. All such remedial action shall be diligently prosecuted to completion.

Failure of the governing body of a municipal corporation, or the board of directors or other governing body of any private corporation, association or other legal entity whatever, to provide immediately for the financing and carrying out of such remedial action, as may be necessary to comply with said order, constitutes failure to take or begin appropriate steps or proceedings to comply with such order. If such person is a municipal corporation, the cost of all such remedial action as is necessary to comply with said order shall be paid out of funds on hand available for such purpose, or out of the General Funds of such municipal corporation, not otherwise appropriated, and if there is not sufficient funds on hand or unappropriated, then the necessary funds shall be raised by the issuance of bonds. Any direct general obligation bond issue is subject to the approval of the Municipal Bond Commission and the Attorney General of the State of West Virginia.

If the estimated cost of the remedial action to be taken by a municipal corporation to comply with such order is such that any bond issue necessary to finance such action would not raise the total outstanding bonded indebtedness of such municipal corporation in excess of the Constitutional limit imposed upon such indebtedness by the Constitution of this state, then and in that event the necessary bonds may be issued as a direct obligation of such municipal corporation, and retired by a general tax levy to be levied against all property within the limit of such municipal corporation listed and assessed for taxation. If the amount of such bonds necessary to be issued would raise the total outstanding bonded indebtedness of such municipal corporation above said Constitutional limitation on such indebtedness, or if such municipal corporation by its governing body shall decide against the issuance of direct obligation bonds, then such municipal corporation shall issue revenue bonds and provide for the retirement thereof in the same manner and subject to the same conditions as provided for the issuance and retirement of bonds in article thirteen, chapter sixteen of this code: Provided, That the provisions of section six of said article, allowing objections to be filed with the governing body, and providing that a written protest of thirty percent or more of the owners of real estate requires a four-fifths vote of the governing body for the issuance of said revenue bonds, does not apply to bond issues proposed by any municipal corporation to comply with an order made and entered under the authority of this article, and such objections and submission of written protest is not authorized, nor does the same, if made or had, operate to justify or excuse failure to comply with such order.

The funds made available by the issuance of either direct obligation bonds or revenue bonds, as herein provided, does constitute a "sanitary fund," and shall be used for no other purpose than for carrying out such order; no public money so raised shall be expended by any municipal corporation for any purpose enumerated in this article, unless such expenditure and the amount thereof have been approved by the director. The acquisition, construction or installation, use and operation, repair, modification, alteration, extension, equipment, custody and maintenance of any disposal system by any municipal corporation, as herein provided, and the rights, powers and duties with respect thereto, of such municipal corporation and the respective officers and departments thereof, whether the same is financed by the issuance of revenue or direct obligation bonds, shall be governed by the provisions of article thirteen, chapter sixteen of this code.

§22-11-19. Emergency orders.

Whenever the director finds that any discharge, release, escape, deposit or disposition of treated or untreated sewage, industrial wastes or other wastes into any waters within this state, when considered alone or in conjunction with other discharges, releases, escapes, deposits or dispositions, constitutes a clear, present and immediate danger to the health of the public, or to the fitness of a private or public water supply for drinking purposes, the director may, with the concurrence in writing of the commissioner of the bureau of public health, without notice or hearing, issue an order or orders requiring the immediate cessation or abatement of any such discharge, release, escape, deposit or disposition, and the cessation of any drilling, redrilling, deepening, casing, fracturing, pressuring, operating, plugging, abandoning, converting or combining of any well, or requiring such other action to be taken as the director, with the concurrence aforesaid, deems necessary to abate such danger.

Notwithstanding the provisions of any other section of this article, any order issued under the provisions of this section is effective immediately and may be served in the same manner as a notice may be served under the provisions of section two, article seven, chapter twenty-nine-a of the code. Any person to whom such order is directed shall comply therewith immediately, but on notice of appeal to the board shall be afforded a hearing as promptly as possible, and not later than ten days after the board receives such notice of appeal. On the basis of such hearing, and within five days thereafter, the board shall make and enter an order continuing the order of the director in effect, revoking it, or modifying it. For the purpose of such appeal and judicial review of the order entered following an appeal hearing, all pertinent provisions of article one, chapter twenty-two-b of this code shall govern.

§22-11-20. Control by state as to pollution; continuing jurisdiction.

No right to violate the rules of the board or director or to continue existing pollution of any of the waters of the state exists nor may such right be acquired by virtue of past or future pollution by any person. The right and control of the state in and over the quality of all waters of the state are hereby expressly reserved and reaffirmed. It is recognized that with the passage of time, additional efforts may have to be made by all persons toward control and reduction of the pollution of the waters of the state, irrespective of the fact that such persons may have previously complied with all orders of the director or board. It is also recognized that there should be continuity and stability respecting pollution control measures taken in cooperation with, and with the approval of, the director, or pursuant to orders of the director or board. When a person is complying with the terms and conditions of a permit granted pursuant to the provisions of section eleven of this article or when a person has completed remedial action pursuant to an order of the director or board, additional efforts may be required wherever and whenever the rules of the board or director or effluent limitations are violated or the waters of the state are polluted by such person.

§22-11-21. Appeal to environmental quality board.

Any person adversely affected by an order made and entered by the director in accordance with the provisions of this article, or aggrieved by failure or refusal of the chief to act within the specified time as provided in subsection (e) of section eleven of this article on an application for a permit or aggrieved by the terms and conditions of a permit granted under the provisions of this article, may appeal to the environmental quality board, pursuant to the provisions of article one, chapter twenty-two-b of this code.

§22-11-22. Civil penalties and injunctive relief; administrative penalties.

(a) Any person who violates any provision of any permit issued under or subject to the provisions of this article or article eleven-a of this chapter is subject to a civil penalty not to exceed $25,000 per day of such violation and any person who violates any provision of this article or of any rule or who violates any standard or order promulgated or made and entered under the provisions of this article, article eleven-a of this chapter or article one, chapter twenty-two-b of this code is subject to a civil penalty not to exceed $25,000 per day of such violation. Any such civil penalty may be imposed and collected only by a civil action instituted by the director in the circuit court of the county in which the violation occurred or is occurring or of the county in which the waters thereof are polluted as the result of such violation.

Upon application by the director, the circuit courts of the state or the judges thereof in vacation may by injunction compel compliance with and enjoin violations of the provisions of this article, article eleven-a of this chapter, the rules of the board or director, effluent limitations, the terms and conditions of any permit granted under the provisions of this article or article eleven-a of this chapter or any order of the director or board, and the venue of any such actions shall be the county in which the violations or noncompliance exists or is taking place or in any county in which the waters thereof are polluted as the result of such violation or noncompliance. The court or the judge thereof in vacation may issue a temporary or preliminary injunction in any case pending a decision on the merits of any injunction application filed. Any other section of this code to the contrary notwithstanding, the state is not required to furnish bond as a prerequisite to obtaining injunctive relief under this article or article eleven-a of this chapter. An application for an injunction under the provisions of this section may be filed and injunctive relief granted notwithstanding that all of the administrative remedies provided for in this article have not been pursued or invoked against the person or persons against whom such relief is sought and notwithstanding that the person or persons against whom such relief is sought have not been prosecuted or convicted under the provisions of this article.

The judgment of the circuit court upon any application filed or in any civil action instituted under the provisions of this section is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be sought in the manner provided by law for appeals from circuit courts in other civil cases, except that the petition seeking review in any injunctive proceeding must be filed with said Supreme Court of Appeals within ninety days from the date of entry of the judgment of the circuit court.

Legal counsel and services for the chief, director or the board in all civil penalty and injunction proceedings in the circuit court and in the Supreme Court of Appeals of this state shall be provided by the Attorney General or his or her assistants and by the prosecuting attorneys of the several counties as well, all without additional compensation, or the chief, director or the board, with the written approval of the Attorney General, may employ counsel to represent him or her or it in a particular proceeding.

(b) In addition to the powers and authority granted to the director by this chapter to enter into consent agreements, settlements and otherwise enforce this chapter, the director shall propose, for legislative promulgation, rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish a mechanism for the administrative resolution of violations set forth in this section through consent order or agreement as an alternative to instituting a civil action.

§22-11-22a. Civil penalties and injunctive relief; civil administrative penalties for coal mining operations.

(a) Any person who holds a permit to operate a coal mining operation issued under article three of this chapter who violates any provision of any permit issued under or subject to the provisions of this article or article eleven-a of this chapter is subject to a civil penalty not to exceed $25,000 per day of the violation and any person who violates any provision of this article or of any rule or who violates any standard or order promulgated or made and entered under the provisions of this article, article eleven-a of this chapter or article one, chapter twenty-two-b of this code is subject to a civil penalty not to exceed $25,000 per day of the violation: Provided, That any penalty imposed pursuant to the Surface Coal Mining and Reclamation Act [§§ 22-3-1 et seq.] shall be credited against any enforcement action under this article for violations of standards protecting state waters.

(1) Any such civil penalty may be imposed and collected only by a civil action instituted by the secretary in the circuit court of the county in which the violation occurred or is occurring or of the county in which the waters thereof are polluted as the result of such violation.

(2) In determining the amount of a civil penalty the circuit court shall consider the seriousness of the violation or violations, the economic benefit, if any, resulting from the violation, any history of the violations, any good-faith efforts to comply with the applicable requirements, cooperation by the permittee with the secretary, the economic impact of the penalty on the violator, and other matters as justice may require.

(3) Upon application by the secretary, the circuit courts of the state or the judges thereof in vacation may by injunction compel compliance with and enjoin violations of the provisions of this article, article eleven-a of this chapter, the rules of the board or secretary, effluent limitations, the terms and conditions of any permit granted under the provisions of this article or article eleven-a of this chapter or any order of the secretary or board, and the venue of any such actions shall be the county in which the violations or noncompliance exists or is taking place or in any county in which the waters thereof are polluted as the result of the violation or noncompliance. The court or the judge thereof in vacation may issue a temporary or preliminary injunction in any case pending a decision on the merits of any injunction application filed. Any other section of this code to the contrary notwithstanding, the state is not required to furnish bond as a prerequisite to obtaining injunctive relief under this article or article eleven-a of this chapter. An application for an injunction under the provisions of this section may be filed and injunctive relief granted notwithstanding that all of the administrative remedies provided in this article have not been pursued or invoked against the person or persons against whom such relief is sought and notwithstanding that the person or persons against whom such relief is sought have not been prosecuted or convicted under the provisions of this article.

(4) The judgment of the circuit court upon any application filed or in any civil action instituted under the provisions of this section is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be sought in the manner provided by law for appeals from circuit courts in other civil cases, except that the petition seeking review in any injunctive proceeding must be filed with said Supreme Court of Appeals within ninety days from the date of entry of the judgment of the circuit court.

(5) Legal counsel and services for the director, secretary or the board in all civil penalty and injunction proceedings in the circuit court and in the Supreme Court of Appeals of this state shall be provided by legal counsel employed by the department, the Attorney General or his or her assistants and by the prosecuting attorneys of the several counties as well, all without additional compensation, or the director, secretary or the board may employ counsel to represent him or her or it in a particular proceeding.

(b) The secretary may assess a civil administrative penalty whenever he or she finds that a person who holds a permit to operate a coal mining operation issued under article three of this chapter has violated any provision of this article or article eleven-a of this chapter, any permit issued under or subject to the provisions of this article or article eleven-a of this chapter or any rule or order issued pursuant to this article or article eleven-a of this chapter. A civil administrative penalty may be assessed unilaterally by the director in accordance with this subsection.

(1) Any civil administrative penalty assessed pursuant to this section shall not exceed $10,000 per violation and the maximum amount of any civil administrative penalty assessed pursuant to this section shall not exceed $125,000: Provided, That any stipulated penalties accrued after the date of the draft order shall not be included for purposes of determining the total amount of the civil administrative penalty. For purposes of this section, a single operational upset which leads to simultaneous violations of more than one pollutant parameter shall be treated as a single violation.

(2) In determining the amount of any civil administrative penalty assessed under this subsection, the secretary shall take into account the nature, circumstances, extent and gravity of the violation, or violations, and, with respect to the violator, ability to pay, any prior history of such violations, the degree of good faith, economic benefit or savings, if any, resulting from the violation, cooperation of the alleged violator, and such other matters as justice may require.

(3) No assessment may be levied pursuant to this subsection until after the alleged violator has been notified by certified mail or personal service pursuant to the West Virginia rules of civil procedure. The notice shall include a proposed order which refers to the provision of the statute, rule, order or permit alleged to have been violated, a concise statement of the facts alleged to constitute the violation, a statement of the amount of the administrative penalty to be imposed and a statement of the alleged violator's right to an informal hearing prior to the issuance of the proposed order.

(A) The alleged violator has thirty calendar days from receipt of the notice within which to deliver to the secretary a written request for an informal hearing.

(B) If no hearing is requested, the proposed order becomes a draft order after the expiration of the thirty-day period.

(C) If an informal hearing is requested, the director shall inform the alleged violator of the time and place of the hearing. The secretary may appoint an assessment officer to conduct the informal hearing and make a written recommendation to the secretary concerning the proposed order and the assessment of a civil administrative penalty.

(D) Within thirty days following the informal hearing, the secretary shall render and furnish to the alleged violator a written decision, and the reasons therefor, concerning the assessment of a civil administrative penalty. The proposed order shall be revised, if necessary, and shall become a draft order.

(4) The secretary shall provide the opportunity for the public to comment on any draft order by publishing a Class II legal advertisement in the newspaper with the largest circulation in the county in which the violation occurred, and by other such means as the secretary deems appropriate, which shall provide notice of the draft order, including the civil administrative penalty assessment. The secretary shall consider any comments received in determining whether to revise the draft order before issuance of a final order. During the thirty-day public comment period, any person may request a public hearing regarding the draft order and the secretary may grant or deny the request at his or her discretion. If a request for a public hearing is denied, the secretary shall provide notice to the person requesting a hearing and reasons for such denial.

(5) Within thirty days of the close of the public comment period on a draft order, the secretary shall issue a final order or make a determination not to issue a final order, and shall provide written notice by certified mail or personal service pursuant to the West Virginia rules of civil procedure to the alleged violator and shall provide notice by certified mail or personal service pursuant to the West Virginia rules of civil procedure to those persons who submitted written comments on the draft order during the public comment period.

(6) The issuance of a final order assessing a civil administrative penalty pursuant to subsection (b) of this section may be appealed to the environmental quality board pursuant to section twenty-one of this article. Any person who submitted written comments on a draft order during the public comment period shall have the right to file such an appeal or intervene in any appeal filed by the alleged violator.

(7) The authority to levy a civil administrative penalty is in addition to all other enforcement provisions of this article and the payment of any assessment does not affect the availability of any other enforcement provision in connection with the violation for which the assessment is levied: Provided, That no combination of assessments against a violator under this section shall exceed $25,000 for each violation: Provided, however, That any violation for which the violator has paid a civil administrative penalty assessed under this section may not be the subject of a separate civil penalty action. No assessment levied pursuant to this section becomes due and payable until at least thirty days after receipt of the final order or the procedures for review of the assessment, including any appeals, have been completed, whichever is later.

(c) In addition to the authorities set forth in this section, the secretary may also enter into agreements, settlements and other consent orders resolving alleged violations of this chapter.

(d) The secretary shall propose, for legislative review, rules, including emergency rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish procedures for assessing civil administrative penalties in accordance with this section by no later than July 1, 2015.

§22-11-23. Priority of actions.

All applications under section twenty-two of this article and all proceedings for judicial review under article one, chapter twenty-two-b of this code shall take priority on the docket of the circuit court in which pending, and shall take precedence over all other civil cases. Where such applications and proceedings for judicial review are pending in the same court at the same time, such applications shall take priority on the docket and shall take precedence over proceedings for judicial review.

§22-11-24. Violations; criminal penalties.

(a) Any person who causes pollution or who fails or refuses to discharge any duty imposed upon him or her by this article, by article eleven-a of this chapter or by any rule of the board or director, promulgated pursuant to the provisions and intent of this article or article eleven-a of this chapter, or by an order of the director or board, or who fails or refuses to apply for and obtain a permit as required by the provisions of this article or article eleven-a of this chapter, or who fails or refuses to comply with any term or condition of such permit, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100 nor more than $1,000, or by imprisonment in the county jail for a period not exceeding six months, or by both fine and imprisonment.

(b) Any person who intentionally misrepresents any material fact in an application, record, report, plan or other document filed or required to be maintained under the provisions of this article, article eleven-a of this chapter or any rules promulgated by the director thereunder is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $1,000 nor more than $10,000 or by imprisonment in jail not exceeding six months or by both fine and imprisonment.

(c) Any person who willfully or negligently violates any provision of any permit issued under or subject to the provisions of this article or article eleven-a of this chapter or who willfully or negligently violates any provision of this article or article eleven-a of this chapter, any rule of the board or director , any effluent limitation or any order of the director or board is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation or by imprisonment in jail not exceeding one year or by both fine and imprisonment.

(d) Any person convicted of a second or subsequent willful violation of subsections (b) or (c) of this section or knowingly and willfully violates any provision of any permit, rule or order issued under or subject to the provisions of this article or article eleven-a of this chapter, or knowingly and willfully violates any provision of this article or article eleven-a of this chapter, is guilty of a felony and, upon conviction, shall be imprisoned in a correctional facility not less than one nor more than three years, or fined not more than $50,000 for each day of violation, or both fined and imprisoned.

(e) Any person may be prosecuted and convicted under the provisions of this section notwithstanding that none of the administrative remedies provided in this article have been pursued or invoked against said person and notwithstanding that civil action for the imposition and collection of a civil penalty or an application for an injunction under the provisions of this article has not been filed against such person.

(f) Where a person holding a permit is carrying out a program of pollution abatement or remedial action in compliance with the conditions and terms of the permit, the person is not subject to criminal prosecution for pollution recognized and authorized by the permit.

§22-11-25. Civil liability; Natural Resources Game Fish and Aquatic Life Fund; use of funds.

If any loss of game fish or aquatic life results from a person or persons' failure or refusal to discharge any duty imposed upon such person by this article, section seven, article six of this chapter or article eleven-a of this chapter, either the West Virginia Division of Natural Resources or the Division of Environmental Protection, or both jointly may initiate a civil action on behalf of the State of West Virginia to recover from such person or persons causing such loss a sum equal to the cost of replacing such game fish or aquatic life. Any moneys so collected shall be deposited in a special revenue fund entitled "Natural Resources Game Fish and Aquatic Life Fund" and shall be expended as hereinafter provided. The fund shall be expended to stock waters of this state with game fish and aquatic life. Where feasible, the Director of the Division of Natural Resources shall use any sum collected in accordance with the provisions of this section to stock waters in the area in which the loss resulting in the collection of such sum occurred. Any balance of such sum shall remain in said fund and be expended to stock state-owned and -operated fishing lakes and ponds, wherever located in this state, with game fish and aquatic life.

§22-11-26. Exceptions as to criminal liabilities.

The criminal liabilities may not be imposed pursuant to section twenty-four of this article for violations resulting from accident or caused by an act of God, war, strike, riot or other catastrophe as to which negligence or willful misconduct on the part of such person was not the proximate cause.

§22-11-27. Existing rights and remedies preserved; article for benefit of state only.

It is the purpose of this article to provide additional and cumulative remedies to abate the pollution of the waters of the state and nothing herein contained shall abridge or alter rights of action or remedies now or hereafter existing, nor shall any provisions in this article, or any act done by virtue of this article, be construed as estopping the state, municipalities, public health officers, or persons as riparian owners or otherwise, in the exercise of their rights to suppress nuisances or to abate any pollution now or hereafter existing, or to recover damages.

The provisions of this article inure solely to and are for the benefit of the people generally of the State of West Virginia, and this article is not intended to in any way create new, or enlarge existing rights of riparian owners or others. An order of the director or of the board, the effect of which is to find that pollution exists, or that any person is causing pollution, or any other order, or any violation of any of the provisions of this article shall give rise to no presumptions of law or findings of fact inuring to or for the benefit of persons other than the State of West Virginia.

§22-11-28. Functions, services and reports of director of the division; obtaining information from others.

The director shall make surveys and investigations of the water resources of the state and shall maintain an inventory of the water resources of the state and to the extent practicable shall divide the state into watershed drainage areas in making this inventory. The director shall investigate and study the problems of agriculture, industry, conservation, health, water pollution, domestic and commercial uses and allied matters as they relate to the water resources of the state, and shall make and formulate comprehensive plans and recommendations for the further development, improvement, protection, preservation, regulation and use of such water resources, giving proper consideration to the hydrologic cycle in which water moves. The director shall provide to the Legislature a biennial report on the quality of the state's waters, including an evaluation of the information which has been obtained in accordance with the requirements of this section and shall include in this report the plans and recommendations which have been formulated pursuant to the requirements of this section. Where possible the timing and content of this report shall be structured so that it may also be used to fulfill any federal program reporting requirements. The report shall include reasons for such plans and recommendations, as well as any changes in the law which are deemed desirable to effectuate such plans and recommendations. Such report shall be made available to the public at a reasonable price to be determined by the director.

The director may request, and, upon request, is entitled to receive from any agency of the state or any political subdivision thereof, or from any other person who engages in a commercial use or controls any of the water resources of the state, such necessary information and data as will assist in obtaining a complete picture of the water resources of the state and the existing control and commercial use thereof. The director shall reimburse such agencies, political subdivisions and other persons for any expenses, which would not otherwise have been incurred, in making such information and data available.

§22-11-29. Reimbursement of response costs.

(a) The secretary may recover through civil action or cooperative agreements with responsible persons, the actual, reasonable and necessary amounts expended by the department for the purpose of responding to, evaluating or overseeing a response to a spill or accidental discharge of any pollutant that enters the waters of the state, or taking measures required to prevent a spill or accidental discharge of any pollutant from entering the waters of the state. The department shall provide the responsible party an itemized invoice of the expenditures that the department seeks to recover.

(b) All moneys recovered by the secretary shall be deposited into the water quality management fund created in section ten of this article and shall be used for future responses to, evaluation or oversight of a response to a spill or accidental discharge of any pollutant that enters the waters of the state, or measures required to be taken to prevent a spill or accidental discharge of any pollutant from entering the waters of the state.

(c) The amounts that may be collected by the secretary pursuant to subsection (a) of this section may include any reasonable and necessary costs incurred by a third party who is not a responsible party and who, with the prior authorization of the secretary or the chief inspector, responds to a spill or accidental discharge that enters or threatens to enter the waters of the state. The department is not responsible for or may not be held liable for costs incurred by the third party responder.

(d) Any civil action instituted pursuant to this section may be brought in the county in which the spill or accidental discharge occurred or the county in which the response occurred.

§22-11-30. Chesapeake Bay Restoration Initiative.

(a) The Legislature finds and declares that:

(1) The Chesapeake Bay and its tributaries are valuable natural resources providing both recreational and economic opportunities to citizens living in and around the Chesapeake Bay watershed. Eight West Virginia counties, and a collective population of more than two hundred thousand citizens, are within the Chesapeake Bay watershed. The protection and promotion of the environmental health and integrity of the Chesapeake Bay is accordingly in the best interests of the State of West Virginia.

(2) The Chesapeake Bay has been identified by the United States Environmental Protection Agency as an impaired water due to excess nitrogen and phosphorous entering the bay from its various tributaries. These pollutants, commonly referred to as nutrients, result in depleted dissolved oxygen supplies and other factors which impact the overall health of the Chesapeake Bay and its watershed.

(b) West Virginia is among six states from which nutrients flow into the Chesapeake Bay. In order to restore the Chesapeake Bay, these states have agreed to reduce the amount of nutrients contributed to the Chesapeake Bay by sources located within their respective jurisdictions.

(c) Among the sources of nutrients discharged into the Chesapeake Bay watershed are wastewater discharged by West Virginia wastewater treatment facilities, stormwater discharged from various sources, wastewater discharged from agriculture-related activities and other sources of wastewater related to both natural and man-made impacts which are not specifically set forth herein.

(d) The need to provide and maintain affordable and high-quality public infrastructure services and to safeguard existing industrial and agricultural sectors of the economy in the Chesapeake Bay watershed are essential to the continued economic growth and quality of life of West Virginia communities within the watershed. Protection of these communities' economic vitality and the Chesapeake Bay are critical interests of the state. The capital costs of nutrient removal processes, if borne by individual rate customers of sewer services or by individual business owners, would result in significant increases in rates for an essential public service, deferral or cancellation of other critical infrastructure extensions and/or improvements and act as a disincentive for business growth, both commercial and agricultural, in these communities, if not the shrinking of industrial and agricultural activity in the watershed. Therefore, a holistic program, while assuring the protection of the Chesapeake Bay, must include: (1) A nutrient trading and off-set program to allow for efficiencies within the watershed to assure that public moneys are placed to best use; and (2) a capital improvement program to assist those required to install capital improvements to obtain the reductions in nutrients previously agreed to by the state.

(e) The secretary, in consultation with affected stakeholders, is hereby directed to establish no later than June 1, 2011, a program of nutrient trading and off-sets. Pending establishment of such a program, the secretary is authorized to consider and implement interim trading and offset programs as necessary and appropriate for individual permittees in order to protect the Chesapeake Bay and its tributaries.

(f) The secretary is hereby directed, no later than June 1, 2010, and in consultation with affected stakeholders, to report to the Joint Legislative Commission on State Water Resources the status of proposed performance standards necessary for wastewater treatment facilities in the Chesapeake Bay watershed for any reduction of nutrients in the watershed required to protect water quality in the Bay.

(g) The secretary and stakeholders shall, no later than June 1, 2010, consider and recommend to the Legislature a program establishing a new and independent source of funding for capital improvements for public facilities made necessary by the imposition of nutrient removal requirements.

(h) Should it be determined based upon new information or the issuance of a final total maximum daily load for the Chesapeake Bay that modifications to nutrient loading requirements contained in West Virginia/National Pollutant Discharge Elimination System permits are necessary to be consistent with this new information or the final total maximum daily load, the secretary shall recalculate such loading requirements and modify such permits consistent with this information.

§22-11A-1. Legislative findings.

(a) The Legislature finds that:

(1) Carbon dioxide is a colorless, odorless gas that can be produced by burning carbon and organic compounds;

(2) Carbon dioxide is emitted into the atmosphere from a number of sources including fossil-fueled power plants, automobiles, certain industrial processes and other naturally occurring sources;

(3) By far, fossil-fueled power plants are the largest source of carbon dioxide emissions. These power plants emit approximately one-third of carbon dioxide emissions worldwide;

(4) On average, the United States generates approximately fifty-one percent of its electricity from coal-burning power plants, which are a prominent source of carbon dioxide emissions;

(5) West Virginia's reliance on electricity produced from coal is even more pronounced, as West Virginia generates approximately ninety-eight percent of its electricity from coal-burning power plants;

(6) There is increasing pressure, both nationally and worldwide, to produce electrical power with an ever-decreasing amount of carbon dioxide emissions;

(7) West Virginia is a state rich in natural resources, and its economy depends largely upon the demand for energy produced from materials found within the state, not the least of which is coal;

(8) As demand for energy produced from alternative and renewable resources rises, new technologies are needed to burn coal more cleanly and efficiently if West Virginia is to remain competitive as an energy producing state;

(9) Carbon dioxide capture and sequestration is the capture and secure storage of carbon dioxide that would otherwise be emitted to, or remain in, the atmosphere. This technology is currently being used and tested to reduce the carbon footprint of electricity generated by the combustion of coal;

(10) The science of carbon dioxide capture and sequestration is advancing rapidly, but the environmental effects of large, long-term carbon dioxide sequestration operations are still being studied and evaluated;

(11) Although the state is committed to expanding its portfolio of alternative and renewable energy resources, electricity generated from these resources is insufficient in the near term to meet the rising demand for energy;

(12) It is in the public interest to advance the implementation of carbon dioxide capture and sequestration technologies into the state's energy portfolio;

(13) The transportation by pipeline and sequestration of carbon dioxide by a public utility engaged in the generation of electricity may be integral to the construction, maintenance and operation of electric light, heat and power plants operating in the state; and

(14) Therefore, in order to expand more rapidly the generation of electricity with little or no carbon dioxide emissions, it is critical to encourage the development of carbon dioxide capture and sequestration technologies; to examine factors that may be integral to the construction, maintenance and operation of carbon dioxide sequestration facilities; and to study the economic and environmental feasibility of large, long-term carbon dioxide sequestration operations.

(b) It is therefore the purpose of this article to:

(1) Establish a legal and regulatory framework for the permitting of carbon dioxide sequestration operations;

(2) Designate a state agency responsible for establishing standards and rules for the permitting of carbon dioxide sequestration operations including, but not limited to, rules pertaining to:

(A) Environmental surveillance of carbon dioxide sequestration operations;

(B) The monitoring of geologic migration of carbon dioxide and the detection of carbon dioxide excursions;

(C) Construction standards for carbon dioxide sequestration operations;

(D) Bonding or other financial assurances; and

(E) The closure of carbon dioxide sequestration operations, including post-closure monitoring, verification and maintenance; and to

(3) With the aid of a carbon dioxide sequestration working group, develop a long-term strategy for the regulation of carbon dioxide sequestration.

§22-11A-2. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(a) "Department" means the Department of Environmental Protection;

(b) "Carbon dioxide sequestration" means the injection of carbon dioxide and associated constituents into subsurface geologic formations intended to prevent its release into the atmosphere;

(c) "Carbon dioxide sequestration facilities" means the surface equipment used for transport, storage and injection of carbon dioxide, excluding pipelines used to transport carbon dioxide from one or more capture facilities to the sequestration injection site or sites.

(d) "Carbon dioxide sequestration site" means the underground carbon dioxide formations where the carbon dioxide is stored or is intended to be stored;

(e) "Excursion" means the migrating of carbon dioxide at or beyond the boundary of a carbon dioxide sequestration site; and

(f) "Secretary" means the Secretary of the Department of Environmental Protection.

§22-11A-3. Prohibition of underground carbon dioxide sequestration without a permit; injection of carbon dioxide for the purpose of enhancing the recovery of oil or other minerals not subject to the provisions of this article, application to existing sequestration sites.

(a) The provisions of §22-11-1 et seq. of this code apply to all permits issued pursuant to this article except, where the express provisions of this article conflict with the provisions of §22-11-1 et seq. of this code, the express provisions of this article control.

(b) Except as set forth in subsection (c) of this section, no person shall engage in underground carbon dioxide sequestration in this state unless authorized by a permit issued by the department in accordance with §22-11-1 et seq. or §22-11B-1 et seq. of this code.

(c) The injection of carbon dioxide for purposes of enhancing the recovery of oil or other minerals pursuant to a project approved by the department shall not be subject to the provisions of this article.

(d) The provisions of this article apply to all permits issued and to all applications for permits submitted prior to the effective date of §22-11B-1 et seq. of this code. If the permit holder for an underground carbon dioxide sequestration facility that was granted a permit prior to the effective date of §22-11B-1 et seq. of this code seeks a modification of that permit after that article became effective, then the permit holder shall have the option to proceed either pursuant to the provisions of this article or the provisions of §22-11B-1 et seq. of this code.

(e) Any entity owning or operating an underground carbon dioxide sequestration facility which has commenced construction on or before the effective date of this article is hereby authorized to continue operating until such time as the secretary has established operational and procedural requirements applicable to such existing facilities and the entity owning or operating such facility has had a reasonable opportunity to comply with those requirements.

§22-11A-4. General powers and duties of the secretary with respect to carbon dioxide sequestration.

(a) The secretary, after receiving public comment and after consultation with the state geologist and the working group established in section six of this article, shall promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article, including without limitation:

(1) The requirements for issuance of permits for carbon dioxide sequestration;

(2) The requirements for carbon dioxide sequestration permit applications;

(3) The issuance of notice following the approval of a permit application, which shall identify the location at which the public may examine the permit, describe the nature of the public's opportunity to comment, and list any public hearing that may be held in connection with the permit. The secretary shall allow no less than thirty days for public comment on the draft permit and may for good cause extend the comment period up to an additional thirty days. Notice of any public hearing shall be given no less than thirty days prior to its conduct; and

(4) The creation of subclasses of wells within the existing Underground Injection Control (UIC) program administered by the United States Environmental Protection Agency pursuant to Part C of the Safe Drinking Water Act, 42 U.S.C. §300h, et seq., to protect human health, safety and the environment and to allow for the permitting of the sequestration of carbon dioxide;

(5) The appropriate bonding or other financial assurance procedures necessary to ensure that carbon dioxide sequestration sites and facilities will be constructed, operated and closed in accordance with the purposes and provisions of this article; and

(6) The proper duration of the post-closure care period for carbon dioxide sequestration sites.

(b) The secretary shall propose amendments to the rules promulgated under this section and take such action as may be required in order to fulfill the state's primary responsibility for assuring compliance with the federal Safe Drinking Water Act, including any amendments thereto.

§22-11A-5. Permit application requirements and contents; permit application fees.

(a) A carbon dioxide sequestration permit application shall include:

(1) A description of the general geology of the area to be affected by the injection of carbon dioxide, including geochemistry, structure and faulting, fracturing and seals, and stratigraphy and lithology, including petrophysical attributes;

(2) A characterization of the injection zone and aquifers above and below the injection zone that may be affected by the injection of carbon dioxide, including applicable pressure and fluid chemistry data to describe the projected effects of injection activities;

(3) The identification of all other drill holes and operating wells that exist or have existed within and adjacent to the proposed sequestration site;

(4) An assessment of the effect on fluid resources, on subsurface structures and on the surface of lands that may reasonably be expected to be affected by the injection of carbon dioxide, together with the measures required to mitigate those effects;

(5) The plans and procedures for environmental surveillance and excursion detection, prevention and control programs;

(6) A site and facilities description, including a description of the proposed carbon dioxide sequestration facilities and documentation sufficient to demonstrate that the applicant has, or will have prior to the commencement of the operation, all legal rights, including without limitation the right to surface or pore space use, necessary to sequester carbon dioxide and associated constituents into the proposed carbon dioxide sequestration site;

(7) Proof that the proposed injection wells are designed, at minimum, to the construction standards set forth by the department;

(8) A plan for periodic mechanical integrity testing of all wells;

(9) A monitoring plan to assess the migration of the injected carbon dioxide and to ensure the retention of the carbon dioxide in the sequestration site;

(10) Proof of bonding or financial assurance to ensure that carbon dioxide sequestration sites and facilities will be constructed, operated and closed in accordance with the purposes and provisions of this article and the rules promulgated pursuant to this article;

(11) A detailed plan for post-closure monitoring, verification, accounting, maintenance and mitigation;

(12) Procedures for the operator of the facilities to provide immediate verbal notice to the department of any excursion after the excursion is discovered, followed by written notice to all surface owners, mineral claimants, mineral owners, lessees and other owners of record of subsurface interests within thirty days of discovering the excursion;

(13) Procedures for the termination or modification of any applicable Underground Injection Control (UIC) permit issued under Part C of the Safe Drinking Water Act, 42 U.S.C. §300h, et seq., if an excursion cannot be controlled or mitigated;

(14) A plan to provide proof of notice to surface owners, mineral claimants, mineral owners, lessees and other owners of record of subsurface interests regarding the contents of the application. At a minimum, the notice shall include:

(A) The publication of a Class I legal advertisement in a newspaper of general circulation in each county of the proposed operation. The applicant shall publish the notice at the time of filing and shall identify in the notice the location where the public may examine the application;

(B) The mailing of a copy of the notice to all surface owners, mineral claimants, mineral owners, lessees and other owners of record of subsurface interests that are located within one mile of the proposed boundary of the carbon dioxide sequestration site; and

(15) Any other requirement set forth in legislative rules promulgated under this article.

(b) Upon filing an application, an applicant shall pay a reasonable fee, as established by the secretary in legislative rules, to the department for the costs of reviewing, evaluating and processing the permit, serving notice of an application and holding any hearings. The fee shall be credited to a separate account and shall be used by the department as required to complete the tasks necessary to process, publish and reach a decision on the permit application.

§22-11A-6. Carbon dioxide sequestration working group.

(a) The secretary shall establish the carbon dioxide sequestration working group.

(b) The secretary, in cooperation with the state geologist, shall appoint at least fifteen persons to serve on the working group.

(c) In selecting persons to serve on the working group, the secretary and the state geologist shall appoint at least three persons who are experts in carbon dioxide sequestration or related technologies, at least one person who is an expert in environmental science, at least one person who is an expert in geology, at least one person who is an attorney with an expertise in environmental law, at least one person who is an expert in engineering, at least one person who is an expert in the regulation of public utilities in West Virginia, one person who is a representative of a citizen's group advocating environmental protection, a representative of a coal power electric generating utility advocating carbon dioxide sequestration development, at least one person who is an engineer with an expertise in the underground storage of natural gas, the chairman of the National Council of Coal Lessors or his/her designee, a representative of the West Virginia Coal Association, a representative of the West Virginia Land and Mineral Owners Association, and at least one representative advocating the interests of surface owners of real property.

(d) The working group shall study issues pertaining to carbon dioxide sequestration including, but not limited to, scientific, technical, legal and regulatory issues, and issues regarding ownership and other rights and interest in subsurface space that can be used as storage space for carbon dioxide and other associated constituents, or other substances, commonly referred to as "pore space," and shall report to the secretary and the Legislature its recommendations with respect to the development, regulation and control of carbon dioxide sequestration and related technologies.

(e) In addition, the working group shall develop a long-term strategy for the regulation of carbon dioxide sequestration in West Virginia.

(f) The working group may conduct or initiate studies, scientific or other investigations, research, experiments and demonstrations pertaining to carbon dioxide sequestration, and to this end, the working group may cooperate with state institutions of higher education or any public or private agency. The secretary may receive on behalf of the state for deposit in the state Treasury any moneys which such institutions or state agencies may be authorized to transfer to the Secretary, and all gifts, donations or contributions which such private agencies or other may provide, to defray the expenses of the working group. Any amounts so received shall be expended by the secretary solely for the purposes set forth in subsection (d) of this section.

(g) The working group shall issue a preliminary report to the secretary and the Legislature by July 1, 2010, containing any preliminary recommendations or findings of the working group.

(h) The working group shall issue a final report to the Legislature by July 1, 2011, which report shall, at a minimum:

(1) Recommend appropriate methods to encourage the development of carbon dioxide sequestration technologies;

(2) Assess the economic and environmental feasibility of large, long-term carbon dioxide sequestration operations;

(3) Recommend any legislation the working group may determine to be necessary or desirable to clarify issues regarding the ownership and other rights and interest in pore space;

(4) Recommend methods of facilitating the widespread use of carbon dioxide sequestration technology throughout West Virginia;

(5) Identify geologic sequestration monitoring sites to assess the short-term and long-term impact of carbon dioxide sequestration;

(6) Assess the feasibility of carbon dioxide sequestration in West Virginia and the characteristics of areas within the state where carbon dioxide could be sequestered;

(7) Assess the costs, benefits, risks and rewards of large-scale carbon dioxide sequestration projects in West Virginia;

(8) Assess the potential carbon dioxide sequestration capacity in this state;

(9) Identify areas of research needed to better understand and quantify the processes of carbon dioxide sequestration; and

(10) Outline the working group's long-term strategy for the regulation of carbon dioxide sequestration in West Virginia.

(i) The working group, along with the state geologist, shall assist the secretary in developing and promulgating legislative rules under this article.

§22-11A-7. Reporting and accountability.

The department shall include within the reports to the Legislature required by section six, article twelve of this chapter its observations concerning all aspects of compliance with this article, including without limitation the promulgation of rules, the formation of the carbon dioxide sequestration working group, the permitting process and any pertinent changes to federal rules or regulations.

§22-11A-8. Oil, natural gas and coalbed methane activities at carbon dioxide sequestration sites; extraction of sequestered carbon dioxide.

(a) Nothing in this article shall be deemed to affect the otherwise lawful right of a mineral owner to drill or bore through a carbon dioxide sequestration site, if done in accordance with the rules promulgated under this article for protecting the carbon dioxide sequestration site against the escape of carbon dioxide.

(b) Nothing in this article is intended to impede or impair the ability of an oil, natural gas or coalbed methane operator to inject carbon dioxide through an approved enhanced oil, natural gas or coalbed methane recovery project and to establish, verify, register and sell emission reduction credits associated with the project.

(c) The Office of Oil and Gas shall have jurisdiction over any subsequent extraction of sequestered carbon dioxide that is intended for commercial or industrial purposes.

§22-11A-9. Cooperative agreements.

The secretary is authorized to enter into cooperative agreements with other governments or government entities for the purpose of regulating carbon dioxide storage projects that extend beyond state regulatory authority under this article.

§22-12-1. Short title.

This article may be known and cited as the Groundwater Protection Act.

§22-12-2. Legislative findings, public policy and purposes.

(a) The Legislature finds that:

(1) West Virginia has relatively pure groundwater resources which are abundant and readily available;

(2) Over fifty percent of West Virginia's overall population, and over ninety percent of the state's rural population, depend on groundwater for drinking water;

(3) A rural lifestyle has created a quality of life in many parts of West Virginia which is highly valued. Maintaining this lifestyle depends upon protecting groundwater to avoid increased expenses associated with providing treated drinking water supplies to rural households;

(4) West Virginia's groundwater resources are geologically complex, with the nature and vulnerability of groundwater aquifers and recharge areas not fully known;

(5) Contamination of groundwater is generally much more difficult and expensive to clean up than is the case with surface water;

(6) Groundwaters and surface waters can be highly interconnected. The quality of any given groundwater can have a significant impact on the quality of groundwaters and surface waters to which it is hydrologically connected;

(7) A diverse array of human activities can adversely impact groundwater, making it necessary to develop regulatory programs that utilize a variety of approaches;

(8) Various agencies of state government currently exercise regulatory control over activities which may impact on groundwater. Coordination and streamlining of the regulatory activities of these agencies is necessary to assure that the state's groundwater is maintained and protected through an appropriate groundwater protection program;

(9) Disruption of existing state regulatory programs should be avoided to the maximum extent practical;

(10) The maintenance and protection of the state's groundwater resources can be achieved consistent with the maintenance and expansion of employment opportunities, agriculture, and industrial development; and

(11) A state groundwater management program will provide economic, social, and environmental benefits for the citizens of West Virginia now and in the future.

(b) Therefore, the Legislature establishes that it is the public policy of the State of West Virginia to maintain and protect the state's groundwater so as to support the present and future beneficial uses and further to maintain and protect groundwater at existing quality where the existing quality is better than that required to maintain and protect the present and future beneficial uses. Such existing quality shall be maintained and protected unless it is established that (1) the measures necessary to preserve existing quality are not technically feasible or economically practical and (2) a change in groundwater quality is justified based upon economic or societal objectives. Such a change shall maintain and protect groundwater quality so as to support the present and future beneficial uses of such groundwater.

(c) The purposes of this article are to:

(1) Maintain and protect the state's groundwater resources consistent with this article to protect the present and future beneficial uses of the groundwater;

(2) Provide for the establishment of a state groundwater management program which will:

(i) Define the roles of agencies of the state and political subdivisions with respect to the maintenance and protection of groundwater, and designate a lead agency for groundwater management;

(ii) Designate a state agency responsible for establishment of groundwater quality standards;

(iii) Provide for the establishment of standards of purity and quality for all groundwater;

(iv) Provide for the establishment of groundwater protection programs consistent with this article;

(v) Establish groundwater protection and groundwater remediation funds;

(vi) Provide for the mapping and analysis of the state's groundwater resources and coordination of the agencies involved; and

(vii) Provide for public education on groundwater resources and methods for preventing contamination;

(3) Provide such enforcement and compliance mechanisms as will assure the implementation of the state's groundwater management program; and

(4) Assure that actions taken to implement this article are consistent with the policies set forth in section two, article eleven of this chapter.

§22-12-3. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(a) "Agency action" means the issuance, renewal or denial of any permit, license or other required agency approval, or any terms or conditions thereof, or any order or other directive issued by the Division of Environmental Protection, bureau of public health, Department of Agriculture or any other agency of the state or a political subdivision to the extent that such action relates directly to the implementation, administration or enforcement of this article.

(b) "Beneficial uses" means those uses which are protective of human health and welfare and the environment. Pollution of groundwater is not considered a beneficial use.

(c) "Board" means the state water resources environmental quality board.

(d) "Constituent" means any chemical or biological substance found in groundwater due to either natural or man-made conditions.

(e) "Director" means the director of the Division of Environmental Protection or such other person to whom the director has delegated authority or duties pursuant to sections six or eight, article one of this chapter.

(f) "Groundwater" means the water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones.

(g) "Groundwater certification" means an assurance issued by the director of the Division of Environmental Protection that a permit or other approval issued by a state, county or local government body regarding an activity that affects or is reasonably anticipated to affect groundwater complies with all requirements of this chapter, the legislative rules promulgated pursuant to this chapter in accordance with chapter twenty-nine-a of this code and any other requirements of state law, rules or agreements regarding groundwater.

(h) "Person" means any industrial user, public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry; sanitary district; public service district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

(i) "Pollution" means the man-made or man-induced alteration of the chemical, physical, biological or radiological integrity of the groundwater.

(j) "Preventative action limit" means a numerical value expressing the concentration of a substance in groundwater that, if exceeded, causes action to be taken to assure that standards of purity and quality of groundwater are not violated.

(k) "Water" means any and all water on or beneath the surface of the ground, whether percolating, standing, diffused or flowing, wholly or partially within this state, or bordering this state and within its jurisdiction, and includes without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds (except farm ponds, industrial settling basins and ponds and water treatment facilities), impounding reservoirs, springs, wells, watercourses and wetlands.

§22-12-4. Authority of Secretary to promulgate standards of purity and quality.

(a) The secretary has the sole and exclusive authority to promulgate standards of purity and quality for groundwater of the state.

(b) These standards shall establish the maximum contaminant levels permitted for groundwater, but in no event shall the standards allow contaminant levels in groundwater to exceed the maximum contaminant levels adopted by the United States Environmental Protection Agency pursuant to the federal Safe Drinking Water Act. The secretary may set standards more restrictive than the maximum contaminant levels where it finds that such standards are necessary to protect drinking water use where scientifically supportable evidence reflects factors unique to West Virginia or some area thereof, or to protect other beneficial uses of the groundwater. For contaminants not regulated by the federal Safe Drinking Water Act, standards for such contaminants shall be established by the secretary to be no less stringent than may be reasonable and prudent to protect drinking water or any other beneficial use. Where the concentration of a certain constituent exceeds such standards due to natural conditions, the natural concentration is the standard for that constituent. Where the concentration of a certain constituent exceeds such standard due to human-induced contamination, no further contamination by that constituent is allowed and every reasonable effort shall be made to identify, remove or mitigate the source of such contamination and to strive where practical to reduce the level of contamination over time to support drinking water use.

(c) The standards of purity and quality for groundwater promulgated by the secretary shall recognize the degree to which groundwater is hydrologically connected with surface water and other groundwater and such standards shall provide protection for such surface water and other groundwater.

(d) In the promulgation of such standards the secretary shall consult with the Department of Agriculture and the Bureau for Public Health, as appropriate.

(e) Any groundwater standard that is in effect on the effective date of this article shall remain in effect until modified by the secretary. Notwithstanding any other provisions of this code to the contrary, the authority of the secretary to adopt standards of purity and quality for groundwater granted by the provisions of this article is exclusive, and to the extent that any other provisions of this code grant such authority to any person, body, agency or entity other than the secretary, those other provisions are void.

§22-12-5. Authority of other agencies; applicability.

(a) Notwithstanding any other provision of this code to the contrary, no agency of state government or any political subdivision may regulate any facility or activities for the purpose of maintaining and protecting the groundwater except as expressly authorized pursuant to this article.

(b) To the extent that such agencies have the authority pursuant to any provision of this code, other than this article, to regulate facilities or activities, the Division of Environmental Protection, the Department of Agriculture, the bureau of public health, and such agencies of the state or any political subdivision as may be specifically designated by the director with the concurrence of such designated agencies or political subdivisions, as appropriate, are hereby authorized to be groundwater regulatory agencies for purposes of regulating such facilities or activities to satisfy the requirements of this article. In addition, the Department of Agriculture is hereby authorized to be the groundwater regulatory agency for purposes of regulating the use or application of pesticides and fertilizers. Where the authority to regulate facilities or activities which may adversely impact groundwater is not otherwise assigned to the Division of Environmental Protection, the Department of Agriculture, the bureau of public health or such other specifically designated agency pursuant to any other provision of this code, the Division of Environmental Protection is hereby authorized to be the groundwater regulatory agency with respect to such unassigned facilities or activities. The Division of Environmental Protection shall cooperate with the Department of Agriculture and the bureau of public health, as appropriate, in the regulation of such unassigned facilities or activities.

(c) Within one year of the effective date of this article, the Department of Agriculture, bureau of public health and Division of Environmental Protection shall promulgate in accordance with the provisions of chapter twenty-nine-a of this code such legislative rules as may be necessary to implement the authority granted them by this article.

(d) Groundwater regulatory agencies shall develop groundwater protection practices to prevent groundwater contamination from facilities and activities within their respective jurisdictions consistent with this article. Such practices shall include, but not be limited to, criteria related to facility design, operational management, closure, remediation and monitoring. Such agencies shall issue such rules, permits, policies, directives or any other appropriate regulatory devices, as necessary, to implement the requirements of this article.

(e) Groundwater regulatory agencies shall take such action as may be necessary to assure that facilities or activities within their respective jurisdictions maintain and protect groundwater at existing quality, where the existing quality is better than that required to maintain and protect the standards of purity and quality promulgated by the board to support the present and future beneficial uses of the state's groundwater.

(f) Where a person establishes to the director that (1) the measures necessary to preserve existing quality are not technically feasible or economically practical and (2) a change in groundwater quality is justified based upon economic or societal objectives, the director may allow for a deviation from such existing quality. Upon the director's finding of (1) and (2) above, the director may grant or deny such a deviation for a specific site, activity or facility or for a class of activities or facilities which have impacts which are substantially similar and exist in a defined geographic area. The director's reasons for granting or denying such a deviation shall be set forth in writing and the director has the exclusive authority to determine the terms and conditions of such a deviation. To insure that groundwater standards promulgated by the board are not violated and that the present and future beneficial uses of groundwater are maintained and protected, the director shall evaluate the cumulative impacts of all facilities and activities on the groundwater resources in question prior to any granting of such deviation from existing quality. The director shall consult with the Department of Agriculture and the bureau of public health as appropriate in the implementation of this subsection. The director shall, upon a written request for such information, provide notice of any deviations from existing quality granted pursuant to this subsection.

(g) Should the approval required in subsection (f) of this section be granted allowing for a deviation from existing quality, the groundwater regulatory agencies shall take such alternative action as may be necessary to assure that facilities and activities within their respective jurisdictions maintain and protect the standards of purity and quality promulgated by the board to support the present and future beneficial uses for that groundwater. In maintaining and protecting such standards of the board, such agencies shall establish preventative action limits which, once reached, shall require action to control a source of contamination to assure that such standards are not violated. The director shall provide guidelines to the groundwater regulatory agencies with respect to the establishment of such preventative action limits.

(h) Subsections (e), (f) and (g) of this section do not apply to coal extraction and earth disturbing activities directly involved in coal extraction that are subject to either or both article three or eleven of this chapter. Such activities are subject to all other provisions of this article.

(i) This article is not applicable to groundwater within areas of geologic formations which are site specific to:

(1) The production or storage zones of crude oil or natural gas and which are utilized for the exploration, development or production of crude oil or natural gas permitted pursuant to articles six, seven, eight, nine or ten of this chapter; and

(2) The injection zones of Class II or III wells permitted pursuant to the statutes and rules governing the underground injection control program.

All groundwater outside such areas remain subject to the provisions of this article. Groundwater regulatory agencies have the right to require the submission of data with respect to the nature of the activities subject to this subsection.

(j) Those agencies regulating the activities specified in subsections (h) and (i), of this section retain their groundwater regulatory authority as provided for in the relevant statutes and rules governing such activities, other than this article.

(k) The director has authority to modify the requirements of subsection (g) of this section with respect to noncoal mining activities subject to article four of this chapter. Such modification shall assure protection of human health and the environment. Those agencies regulating such noncoal mining activities shall retain their groundwater regulatory authority as provided for in the relevant statutes and rules governing such activities other than this article.

(l) If the director proposes a need for a variance for classes of activities which by their nature cannot be conducted in compliance with the requirements of subsection (g) of this section, then the director shall promulgate legislative rules in accordance with chapter twenty-nine-a of this code, following public hearing on the record. The rules so promulgated shall set forth the director's findings to substantiate such need and the criteria by which such variances shall be granted or denied. Should any person petition or request the director to undertake such a determination, that person will give contemporaneous notice of such petition or request by Class I advertisement in a newspaper of general circulation in the area to be affected by the request.

(m) All rules, permits, policies, directives and orders of the Department of Agriculture, the bureau of public health and Division of Environmental Protection, in effect on the effective date of this article and which are consistent with this article shall remain in full force and effect as if they were issued pursuant to this article unless and until modified pursuant to this article.

§22-12-6. Lead agency designation; additional powers and duties.

(a) The Division of Environmental Protection is hereby designated to be the lead agency for groundwater and is authorized and shall perform the following additional powers and duties:

(1) To maintain the state groundwater management strategy;

(2) To develop, as soon as practical, a central groundwater data management system for the purpose of providing information needed to manage the state's groundwater program;

(3) To provide a biennial report to the Legislature on the status of the state's groundwater and groundwater management program, including detailed reports from each groundwater regulatory agency;

(4) To coordinate with other agencies to develop a uniform groundwater program;

(5) To perform any and all acts necessary to obtain the benefits to the state of any federal program related to groundwater;

(6) To receive grants, gifts or contributions for purposes of implementing this article from federal agencies, state agencies or any other persons interested in the management of groundwater resources; and

(7) To promulgate legislative rules implementing this subsection in accordance with the provisions of chapter twenty-nine-a of this code, including rules relating to monitoring and analysis of groundwater.

(b) The Division of Environmental Protection, bureau of public health, and Department of Agriculture shall participate in the data management system developed by the Division of Environmental Protection pursuant to subsection (a) of this section and shall provide the director with such information as the director shall reasonably request in support of his or her promulgation of rules pursuant to this article.

(c) The Division of Environmental Protection, bureau of public health, and Department of Agriculture are hereby authorized:

(1) To engage the voluntary cooperation of all persons in the maintenance and protection of groundwater, and to advise, consult and cooperate with all persons, all agencies of this state, universities and colleges, the federal government or other states, and with interstate agencies in the furtherance of the purposes of this article, and to this end and for the purposes of studies, scientific or other investigations, research, experiments and demonstrations pertaining thereto, receive and spend funds as appropriated by the Legislature, and from such agencies and other officers and persons on behalf of the state;

(2) To encourage the formulation and execution of plans to maintain and protect groundwater by cooperative groups or associations of municipal corporations, industries, industrial users and other users of groundwaters of the state, who, jointly or severally, are or may be impacting on the maintenance and protection of groundwater;

(3) To encourage, participate in, or conduct or cause to be conducted studies, scientific or other investigations, research, experiments and demonstrations relating to the maintenance and protection of groundwater, and to collect data with respect thereto, all as may be deemed advisable and necessary to carry out the purposes of this article, and to make reports and recommendations with respect thereto;

(4) To conduct groundwater sampling, data collection, analyses and evaluation with sufficient frequency so as to ascertain the characteristics and quality of groundwater, and the sufficiency of the groundwater protection programs established pursuant to this article;

(5) To develop a public education and promotion program to aid and assist in publicizing the need of and securing support for the maintenance and protection of groundwater.

§22-12-7. Groundwater coordinating committee; creation.

(a) The state groundwater coordinating committee is continued. It consists of the commissioner of the bureau of public health, the commissioner of agriculture, the chair of the environmental quality board, the chief of the office of water resources of the Division of Environmental Protection and the director of the Division of Environmental Protection who shall serve as its chair.

(b) The groundwater coordinating committee shall consult, review and make recommendations on the implementation of this article by each of the groundwater regulatory agencies. Such committee shall require the periodic submittal to it of the groundwater protection programs of each groundwater regulatory agency including all rules, permits, policies, directives and any other regulatory devices employed to implement this article.

(c) Upon a review of such programs, the groundwater coordinating committee shall recommend to the director approval of such programs, in whole or in part, and identify in writing any aspect of such programs that are not sufficient to satisfy the requirements of this article and specify a reasonable time period for correcting those portions of the program that are found not to be sufficient.

(d) The director may accept the recommendation of the committee, in whole or in part, and identify in writing any additional aspects of such programs that are not sufficient to satisfy the requirements of this article and specify a time period for correcting those portions of the program that are found not to be sufficient.

(e) In the biennial report to the Legislature required by this article, the director shall identify all portions of groundwater protection programs which have been determined not to be sufficient to satisfy the requirements of this article and which have not been adequately addressed within the time period specified by the director.

(f) No agency shall modify any aspect of its groundwater protection program as approved by the director without the prior written approval of the director of such modification. This requirement does not relieve such agency of any other requirements of law that may be applicable to such a modification.

(g) The groundwater coordinating committee is authorized and empowered to promulgate such legislative rules as may be necessary to implement this section in accordance with the provisions of chapter twenty-nine-a of this code.

§22-12-8. Groundwater certification.

(a) To ensure a comprehensive, consistent and unfragmented approach to the management and protection of groundwater, including evaluation of the cumulative effects of all activities that have the potential to impact on groundwater, the director shall oversee and coordinate the implementation of this article by each of the groundwater regulatory agencies through a groundwater certification program as hereby established.

(b) Every state, county or local government body which reviews or issues permits, licenses, registrations, certificates of other forms of approval, or renewal thereof, for activities or practices which may affect groundwater quality shall first submit to the director for review and approval an application for certification. Such application shall include a copy of the approval proposed by such body, including any terms and conditions which have been imposed by it. Upon receipt of this application, the director shall act within thirty days to determine whether to waive or exercise his or her certification powers. If no decision is made or communicated by the director within said thirty day period, groundwater certification is approved. If the director decides to exercise his or her certification powers, he or she may utilize additional time, not to exceed an additional sixty days, to further review the materials submitted or to conduct such investigations as he or she deems necessary.

(c) The director may waive, grant, grant with conditions, or deny groundwater certification. Groundwater certification, and all conditions required under such certification, shall become a condition on any permit, approval or renewal thereof, issued by any state, county or local government body. Where appropriate, the director may provide general groundwater certification for or may waive certification for classes or categories of activities or approvals.

§22-12-9. Groundwater protection fees authorized; director to promulgate rules; dedication of fee proceeds; groundwater protection fund established; groundwater remediation fund established.

(a) The Director of the Division of Environmental Protection shall promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code establishing a schedule of groundwater protection fees applicable to persons who own or operate facilities or conduct activities subject to the provisions of this article. The schedule of fees shall be calculated by the director to recover the reasonable and necessary costs of implementing the provisions of this article as it relates to a particular facility or activity. In addition, the fee may include an appropriate assessment of other program costs not otherwise attributable to any particular facility or activity. Such fees in the aggregate shall not exceed $1 million per year and shall be deposited into the groundwater protection fund established pursuant to this article: Provided, That any unexpended balance in the groundwater protection fund at the end of each fiscal year may, by an act of the Legislature, be transferred to the groundwater remediation fund created by this article: Provided, however, That if no action is taken to transfer the unexpended balance to the remediation fund, such moneys shall not be transferred to the General Revenue Fund, but shall remain in the groundwater protection fund. Such fees imposed by this section are in addition to all other fees and taxes levied by law. The director shall require such fees to be paid at the time of certification pursuant to section eight of this article, or at such more frequent time as the director may deem to be appropriate. The director may withhold certification pursuant to section eight of this article where such fees have not been timely paid.

(b) The Director of the Division of Environmental Protection shall also promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code establishing a schedule of groundwater remediation fees which in the aggregate shall not exceed $250,000. Such groundwater remediation fees shall be assessed over a time period not to exceed two years from effective date of such rules and shall be deposited into the groundwater remediation fund established pursuant to this article. Such fees shall be assessed against persons who own or operate facilities or conduct activities subject to the provisions of this article in proportion to the groundwater protection fees assessed pursuant to subsection (a) of this section for the year in which such groundwater remediation fees, or any portion thereof, are assessed.

(c) The following two special revenue accounts are continued in the state Treasury:

(1) The "Groundwater Protection Fund", the moneys of which shall be expended by the director in the administration, certification, enforcement, inspection, monitoring, planning, research and other activities of the environmental quality board, Division of Environmental Protection, Bureau for Public Health and Department of Agriculture in accordance with legislative rules promulgated pursuant to the provisions of chapter twenty-nine-a of this code. The moneys, including the interest thereon, in said fund shall be kept and maintained by the director and expended without appropriation by the Legislature for the purpose of implementing the provisions of this article. The director may withhold the payment of any such moneys to any agency whose groundwater protection program has been determined by the director, in consultation with the groundwater coordinating committee, not to be sufficient to satisfy the requirements of this article and where such agency has failed to adequately address such determination within the time period specified by the director. At the end of each fiscal year, any unexpended balance of said fund may not be transferred to the General Revenue Fund, but shall remain in the groundwater protection fund.

(2) The "Groundwater Remediation Fund", the moneys of which, to the extent that moneys are available, shall be expended by the director for the purposes of investigation, clean-up and remedial action intended to identify, minimize or mitigate damage to the environment, natural resources, public and private water supplies, surface waters and groundwaters and the public health, safety and general welfare which may result from contamination of groundwater or the related environment. The director or other authorized agency officials are authorized to recover through civil action or cooperative agreements with responsible persons the full amount of any and all groundwater remediation fund moneys expended pursuant to this article. All moneys expended from such fund which are so recovered shall be deposited in such fund. The director may expend moneys from said fund and the interest thereon without necessity of appropriation by the Legislature. All civil penalties and assessments of civil administrative penalties collected pursuant to this article shall be deposited into the said fund. In addition, said fund may receive proceeds from any gifts, grants, contributions or other moneys accruing to the state which are specifically designated for inclusion in the fund.

§22-12-10. Civil and criminal penalties; civil administrative penalties; dedication of penalty proceeds; injunctive relief; enforcement orders; hearings.

(a) Any person who violates any provision of this article, or any permit or agency approval, rule or order issued to implement this article, is subject to civil penalties in accordance with the provisions of section twenty-two, article eleven of this chapter: Provided, That such penalties are in lieu of civil penalties which may be imposed under other provisions of this code for the same violation.

(b) Any person who willfully or negligently violates any provision of this article, or any provision of a permit or agency approval, rule or order issued to implement this article, is subject to criminal penalties in accordance with the provisions of section twenty-four, article eleven of this chapter: Provided, That such penalties are in lieu of other criminal penalties which may be imposed under other provisions of this code for the same violation.

(c) Any person who violates any provision of this article, or any permit or rule or order issued to implement this article, is subject to a civil administrative penalty to be levied by the director, the commissioner of agriculture or the commissioner of the bureau of public health, as appropriate, of not more than $5,000 for each day of such violation, not to exceed a maximum of $20,000. In assessing any such penalty, any such official shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements as well as any other appropriate factors as may be established by such official by legislative rules promulgated pursuant to this article and the provisions of chapter twenty-nine-a of this code. No assessment may be levied pursuant to this subsection until after the alleged violator has been notified by such official by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, order or statement of permit conditions that was allegedly violated, a concise statement of the facts alleged to constitute the violation, a statement of the amount of the administrative penalty to be imposed and a statement of the alleged violator's right to an informal hearing. The alleged violator shall have twenty calendar days from receipt of the notice within which to deliver to such official a written request for an informal hearing. If no hearing is requested, the notice becomes a final order after the expiration of the twenty-day period. If a hearing is requested, such official shall inform the alleged violator of the time and place of the hearing. Such official may appoint an assessment officer to conduct the informal hearing who shall make a written recommendation to such official concerning the assessment of a civil administrative penalty. Within thirty days following the informal hearing, such official shall issue and furnish to the violator a written decision, and the reasons therefor, concerning the assessment of a civil administrative penalty. Within thirty days after notification of such official's decision, the alleged violator may request a formal hearing before the board in accordance with the provisions of section eleven of this article. Any administrative civil penalty assessed pursuant to this section is in lieu of any other civil penalty which may be assessed under any provision of this code for the same violation. No combination of assessments against any violator under this section may exceed $25,000 per day of each such violation. All administrative penalties shall be levied in accordance with legislative rules promulgated by such official in accordance with the provisions of chapter twenty-nine-a of this code.

(d) The net proceeds of all civil penalties collected pursuant to subsection (a) of this section and all assessments of any civil administrative penalties collected pursuant to subsection (c) of this section shall be deposited into the groundwater remediation fund established pursuant to this article.

(e) Any such official may seek an injunction, or may institute a civil action against any person in violation of any provision of this article or any permit, agency approval, rule or order issued to implement this article. In seeking an injunction, it is not necessary for such official to post bond nor to allege or prove at any point in the proceeding that irreparable damage will occur if the injunction is not issued or that the remedy at law is inadequate. An application for injunctive relief or a civil penalty action under this section may be filed and relief granted notwithstanding the fact that all administrative remedies provided for in this article have not been exhausted or invoked against the person or persons against whom such relief is sought.

(f) If any such official upon inspection, investigation or through other means observes, discovers or learns of a violation of the provisions of this article, or any permit, order or rules issued to implement the provisions of this article, he or she may issue an order stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time. An order under this section includes, but is not limited to, any or all of the following: Orders implementing this article which: (1) Suspend, revoke or modify permits; (2) require a person to take remedial action; or (3) are cease and desist orders.

(g) Any person issued a cease and desist order under subsection (f) of this section may file a notice of request for reconsideration with such official not more than seven days from the issuance of such order and shall have a hearing before such official to contest the terms and conditions of such order within ten days after filing such notice of a request for reconsideration. The filing of a notice of request for reconsideration does not stay or suspend the execution or enforcement of such cease and desist order.

§22-12-11. Appeal procedures.

Any person having an interest which is or may be adversely affected, or who is aggrieved by an order of the director or any public official authorized to take or implement an agency action, or by the issuance or denial of a permit issued to implement this article or by such permit's term or conditions, or by the failure or refusal to act within a reasonable time, may appeal to the environmental quality board as provided in article one, chapter twenty-two-b of this code.

§22-12-12. Rule-making petition.

Any person may petition the appropriate rule-making agency for rule making on an issue arising under this article. The appropriate rule-making agency, if it believes such issue to merit rule making, may initiate rulemaking in accordance with the provisions of chapter twenty-nine-a of this code. A decision by the appropriate rule-making agency not to pursue rule making must set forth in writing reasons for refusing to do so. Any person may petition an agency to issue a declaratory ruling pursuant to section one, article four, chapter twenty-nine-a of this code with respect to the applicability to any person, property or state of facts of any rules promulgated by that agency pursuant to this article.

§22-12-13. Existing rights and remedies preserved; effect of compliance.

(a) It is the purpose of this article to provide additional and cumulative remedies to address the quality of the groundwater of the state. This article does not alter the authority of any agency with respect to water other than groundwater. Except as expressly stated in this article, it is not the intention of the Legislature in enacting this article to repeal any other provision of this code.

(b) Nothing contained in this article abridges or alters rights of action or remedies now or hereafter existing, nor do any provisions in this article, or any act done by virtue of this article, estop the state, municipalities, public health officers or persons as riparian owners or otherwise, in the exercise of their rights to suppress nuisances or to abate any pollution now or hereafter existing, or to recover damages.

(c) Where a person is operating a source or conducting an activity in compliance with the terms and conditions of a permit, rule, order, directive or other authorization issued by a groundwater regulatory agency pursuant to this article, such person is not subject to criminal prosecution for pollution recognized and authorized by such permit, rule, order, directive or other authorization.

§22-12-14. Effective dates of provisions subject to federal approval.

To the extent that this article modifies any powers, duties, functions and responsibilities of any state agency that may require approval of one or more federal agencies or officials in order to avoid disruption of the federal-state relationship involved in the implementation of federal regulatory programs by the state, any such modifications become effective upon a proclamation by the Governor stating either that final approval of such modifications has been given by the appropriate federal agency or official or that final approval of such modification is not necessary to avoid disruption of the federal-state relationship under which such regulatory programs are implemented.

§22-13-1. Short title.

This article may be known and cited as the Natural Streams Preservation Act.

§22-13-2. Declaration of public policy.

In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not impound, flood or divert all streams within the State of West Virginia, leaving no streams designated for preservation and protection in their natural condition, it is hereby declared to be the public policy of this state to secure for the citizens of West Virginia of present and future generations the benefits of an enduring resource of free-flowing streams possessing outstanding scenic, recreational, geological, fish and wildlife, botanical, historical, archeological or other scientific or cultural values.

§22-13-3. Definitions.

Unless the context, in which used, clearly requires a different meaning, as used in this article:

(1) "Board" means the environmental quality board;

(2) "Director" means the director of the Division of Environmental Protection or such other person to whom the director has delegated authority or duties pursuant to sections six or eight, article one of this chapter;

(3) "Free-flowing" means existing or flowing in natural condition without impoundment, by diversion, or flooding of the waterway;

(4) "Modification" means the impounding, diverting or flooding of a stream within the natural stream preservation system;

(5) "Modify" means to impound, divert or flood a stream within the natural stream preservation system;

(6) "Permit" means a permit required by section seven of this article;

(7) "Person," "persons" or "applicants" means any public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; state of West Virginia; governmental agencies; political subdivision; county commission; municipal corporations; industries; sanitary district; public service district; drainage district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any other legal entity whatever;

(8) "Protected stream" means any stream designated as such in section five of this article, but does not include tributaries or branches unless specifically designated or described in section five of this article;

(9) "Stream" means a flowing body of water or a section or portion thereof, including rivers, streams, creeks, branches or small lakes.

§22-13-4. Establishment of natural stream preservation system.

For the purpose of implementing the public policy declared in section two of this article, there is hereby established a natural stream preservation system to be composed of streams designated by the Legislature as "protected streams," and these shall be administered for the use and enjoyment of the citizens of West Virginia in such manner as will leave them unimpaired for future use and enjoyment as free-flowing streams, and so as to provide for the protection and the preservation of these streams in their natural character.

§22-13-5. Designation of protected streams.

The following streams are hereby designated as protected streams within the natural streams preservation system, namely:

(a) Greenbrier River from its confluence with Knapps Creek to its confluence with the New River.

(b) Anthony Creek from its headwaters to its confluence with the Greenbrier River.

(c) Cranberry River from its headwaters to its confluence with the Gauley River.

(d) Birch River from the Cora Brown bridge in Nicholas county to the confluence of the river with the Elk River.

(e) New River from its confluence with the Gauley River to its confluence with the Greenbrier River.

§22-13-6. General powers and duties of director with respect to protected streams.

(a) In addition to all other powers and duties of the director, as prescribed in this article or elsewhere by law, the director shall exercise supervision over the administration and enforcement of the provisions of this article, and all orders and permits issued pursuant to the provisions of this article.

(b) In addition to all other powers and duties of the director, as prescribed in this article or elsewhere by law, the director has authority to promulgate rules, in accordance with the provisions of chapter twenty-nine-a of this code, to implement and make effective the powers, duties and responsibilities vested in the director by the provisions of this article and otherwise by law: Provided, That all such rules shall be consistent with the declaration of public policy set forth in section two of this article.

(c) The director and duly authorized representatives, have the power and authority to make investigations, inspections and inquiries concerning compliance with the provisions of this article, any order made and entered in accordance with the provisions of this article, any rules promulgated by the director, and with the terms and conditions of any permit issued in accordance with the provisions of section nine of this article. In order to make such investigations, inspections and inquiries, the director and duly authorized representatives, have the power and authority to enter at all reasonable times upon any private or public property, subject to responsibility for any damage to the property entered. Upon entering, and before making any investigation, inspection and inquiry, such person shall immediately present himself or herself to the occupant of the property. Upon entering property used in any manufacturing, mining or other commercial enterprise, or by any municipality or governmental agency or a subdivision, and before making any investigation, inspection and inquiry, such person shall immediately present himself or herself to the person in charge of the operation, and if he or she is not available, to a managerial employee. All persons shall cooperate fully with the person entering such property for such purposes. Upon a refusal of the person owning or controlling such property to permit such entrance or the making of such inspections, investigations and inquiries, the director may apply to the circuit court of the county in which such property is located, or to the judge thereof in vacation, for an order permitting such entrance and the making of such inspections, investigations, and inquiries; and jurisdiction is hereby conferred upon such court to enter such order upon a showing that the relief asked is necessary for the proper enforcement of this article. Nothing contained in this section eliminates any obligation to follow any process that may be required by law.

§22-13-7. When permits required; when permits not to be issued.

(a) It is unlawful for any person, until the department's permit has been granted, to modify any protected stream or any part of the stream. A permit may not be issued unless the work proposed to be done under the permit:

(1) Will not materially alter or affect the free-flowing characteristics of a substantial part of a protected stream or streams;

(2) Is necessary to prevent an undue hardship; and

(3) Meets with the approval of the secretary.

(b) The Department of Transportation's Division of Highways is not required to obtain a permit under this section when it is repairing or replacing damaged bridges and that repair or replacement requires the construction of temporary flow diversions in the stream that will not permanently materially alter or affect the free-flowing characteristics of a substantial part of the steam, so long as boat passage remains available during the entire period of bridge repair or replacement.

§22-13-8. Application for permit; form of application; information required; fees.

The director shall prescribe a form of application for all permits. All applications for permits shall be submitted to the division and shall be on the prescribed form.

A permit fee of $10 shall accompany the application when filed with the division. The permit fee shall be deposited in the state Treasury to the credit of the state general fund.

§22-13-9. Procedure for issuance or denial of permit; transfer of permits.

(a) Before issuing a permit, a public hearing shall be held. The director shall consider the application and shall fix a time and place for hearing on such application. The hearing shall be held in a county in which the proposed modification is to be made and, if the proposed modification is to be made in more than one county, then a separate hearing shall be held in each county in which the proposed modification is to be made. The applicant shall cause a notice of the time and place of such hearing and the purpose thereof to be published as a Class III-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication is the county or counties in which the proposed modification is to be made. Publication of the notice shall be completed at least fifteen days before such hearing. The applicant shall also cause to be served, at least fifteen days before such hearings, in the manner provided by law for the service of notice and process, a notice showing the time, place and purpose of such hearing, upon every owner of property, and every person holding a lien thereon, abutting on that portion of the stream on which the modification is to be made, or abutting on any portion of such stream within two miles above or below the proposed modification. The affidavit of publication of such notice shall be filed with the director or his or her duly designated hearing examiner at or before the hearing as a part of the record in the proceedings.

(b) At the time and place fixed for the hearings, the director or his or her duly designated hearing examiner shall hear any evidence relating to the proposed modification, the necessity therefor, the effect of such modification on the stream and any and all other matters relevant to the application and the proposed modification. If the director concludes and finds upon the record and evidence in the proceedings that the proposed modification should be permitted, he or she shall proceed to issue the permit: Provided, That the director may attach such conditions, qualifications or limitations to such permit as he or she finds appropriate.

(c) An application for any such permit shall be acted upon by the director and the division's permit delivered or mailed, or a copy of any order of the director denying any such application mailed as hereinafter specified, as the case may be, to the applicant by the director within forty-five days after the hearings have been completed.

(d) When it is established that an application for a permit should be denied, the director shall make and enter an order to that effect, which order shall specify the reasons for such denial, and shall cause a copy of such order to be served on the applicant by registered or certified mail. The director shall also cause a notice to be served with the copy of such order, which notice shall advise the applicant of his or her right to appeal to the board by filing a notice of appeal, on a form prescribed by the board for such purpose, with the board, within the time specified in and in accordance with the provisions of section seven, article one, chapter twenty-two-b of this code. However, an applicant may offer the plans and specifications for the proposed modification and submit a new application for any such permit, in which event the procedure hereinbefore outlined with respect to an original application shall apply.

(e) Upon the sale of property which includes an activity for which the division's permit was granted, the permit is transferable to the new owner, but the transfer does not become effective until it is made in the records of the division.

§22-13-10. Inspections; orders to compel compliance with permits; service of order.

After issuance of the division's permit for any such modification, the director and duly authorized representatives may make field inspections of the work on the modification, and, after completion thereof, may inspect the completed modification, and, from time to time, may inspect the maintenance and operation of such modification.

To compel compliance with the terms and conditions of the division's permit for any such modification and with the plans and specifications therefor and the plan of maintenance and method of operation thereof, the director is hereby authorized after reasonable notice to make and enter an order revoking or suspending such permit and directing the person to whom such permit was issued to stop or suspend any and all work on such activity or, to take affirmative action to correct the deficiencies specified in such order so there will be full compliance with the terms and conditions of such permit and with the plans and specifications therefor, and the plan of maintenance and method of operation thereof.

The director shall cause a copy of any such order to be served by registered or certified mail or by a law-enforcement officer upon the person to whom any such permit was issued. The director shall also cause a notice to be served with the copy of such order, which notice shall advise such person of his or her right to appeal to the board by filing a notice of appeal on the form prescribed by the board for such purpose, with the board, within the time specified in and in accordance with the provisions of section seven, article one, chapter twenty-two-b of this code.

§22-13-11. Appeal to environmental quality board.

(a) Any person adversely affected by an order made and entered by the director in accordance with the provisions of this article, or aggrieved by failure or refusal of the director to act within the time required by section nine of this article on an application for a permit or aggrieved by the terms and conditions of a permit granted under the provisions of this article, may appeal to the environmental quality board for an order vacating or modifying such order, or for such order, action or terms and conditions as the director should have entered, taken or imposed.

(b) Notwithstanding the provisions of section nine, article one, chapter twenty-two-b of this code:

(1) Appeals from orders of the board in cases involving an order denying an application for a permit, or approving or modifying the terms and conditions of a permit, shall be filed, within the time specified in said section, in the circuit court of any county in which such modification is proposed to be made.

(2) Appeals from orders of the board in cases involving an order revoking or suspending a permit and directing any and all work on such modification to stop, or directing that affirmative action be taken to correct alleged and specified deficiencies concerning any such modification, shall be filed, within the time specified in said section, in the circuit court of any county in which any part of such modification is proposed to be made.

§22-13-12. Actions to abate nuisances; injunctive relief.

Whether any violation of the provisions of this article or any final order of the director or the board results in prosecution or conviction or not, any such violation is a nuisance which may be abated upon application by the chief to the circuit court of the county in which such nuisance or any part thereof exists, or to the judge thereof in vacation. Upon application by the director, the circuit courts of this state may by mandatory or prohibitive injunction compel compliance with all final orders of the director or board. Any application for an injunction to compel compliance with any final order of the director or board shall be made to the circuit court of any county in which the modification to which the order relates is proposed to be made, or in which the modification to which the order relates is situate or would be situate upon completion thereof. Upon application by the director to the circuit court of the county in which a municipal corporation is located, or in which any person resides or does business, or to the judge thereof in vacation, such court may by injunction require the performance of any duty imposed upon such municipal corporation or person by the provisions of this article. The court may issue a temporary injunction in any case pending a decision on the merits of any application filed. In cases of modifications where irreparable damage will result from any delay incident to the administrative procedures set forth in this article, the director may forthwith apply to the circuit court of any county in which the modification is taking place for a temporary injunction. Such court may issue a temporary injunction pending final disposition of the case by the director or the board, in the event an appeal is taken to the board.

The judgment of the circuit court upon any application permitted by the provisions of this section is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be sought in a manner provided by law for appeals for circuit courts in other civil cases, except that the petition seeking such review must be filed with said Supreme Court of Appeals within ninety days from the date of entry of the judgment of the circuit court.

The director shall be represented in all such proceedings by the Attorney General or his or her assistant and in such proceedings in the circuit court by the prosecuting attorneys of the several counties as well, all without additional compensation.

§22-13-13. Priority of actions.

All applications under section twelve of this article and all proceedings for judicial review under article one, chapter twenty-two-b of this code shall take priority on the docket of the circuit court in which pending, and shall take precedence over all other civil cases. Where such applications and proceedings for judicial review are pending at the same time, such applications shall take priority on the docket and shall take precedence over proceedings for judicial review.

§22-13-14. Violations; criminal penalties.

Any person who fails or refuses to discharge any duty imposed upon him or her by this article or by any final order of the director or board, or who fails or refuses to apply for and obtain a permit as required by the provisions of this article, is guilty of a misdemeanor, and, upon conviction thereof, shall be punished for a first offense by a fine of not less than $25 nor more than $100, and for a second offense by a fine of not less than $200 nor more than $500, and for a third offense and each subsequent offense by a fine of not less than $500 nor more than $1,000 or by imprisonment for a period not to exceed six months, or in the discretion of the court by both such fine and imprisonment.

§22-13-15. Exceptions as to criminal liabilities.

The criminal liabilities provided for in section fourteen of this article may not be imposed for any violation resulting from accident or caused by an act of God, war, strike, riot or other catastrophe as to which negligence or willful conduct on the part of such person was not the proximate cause.

§22-14-1. Short title.

This article shall be known and cited as the Dam Control and Safety Act.

§22-14-2. Legislative findings; intent and purpose of article.

The Legislature finds that dams may constitute a potential hazard to people and property; therefore, dams in this state must be properly regulated and controlled to protect the health, safety and welfare of people and property in this state. It is the intent of the Legislature by this article to provide for the regulation and supervision of dams in this state to the extent necessary to protect the public health, safety and welfare. The Legislature has ordained this article to fulfill its responsibilities to the people of this state and to protect their lives and private and public property from the danger of a potential or actual dam failure. The Legislature finds and declares that in light of the limited state resources available for the purposes of this article, and in view of the high standards to which the United States natural resources conservation service designs dams, independent state review of the plans and specifications for dams designed by the natural resources conservation service and construction oversight should not be required. The Legislature further finds and declares that dams designed and constructed by the natural resources conservation service but not owned or operated by it should be subject to the same provisions of inspection, after construction and certification by the natural resources conservation service, as other dams covered by this article, so long as any dam under the natural resources conservation service program is designed with standards equal to or exceeding state requirements under this article.

§22-14-3. Definition of terms used in article.

As used in this article, unless used in a context that clearly requires a different meaning, the term:

(a) "Alterations" or "repairs" means only those changes in the structure or integrity of a dam that may affect its safety to be determined by the secretary.

(b) "Application for a certificate of approval" means the written application provided to the secretary requesting that a person be issued a certificate of approval.

(c) "Appurtenant works" means any structure or facility that is an adjunct of, or connected, appended or annexed to, a dam, including, but not limited to, spillways, a reservoir and its rim, low-level outlet works or water conduits such as tunnels, pipelines and penstocks either through the dam or its abutments.

(d) "Authority" means the Water Development Authority provided in section four, article one, chapter twenty-two-c of this code.

(e) "Certificate of approval" means the written approval issued by the secretary to a person who has applied to the secretary for a certificate of approval that authorizes the person to place, construct, enlarge, alter, repair or remove a dam and specifies the conditions or limitations under which the work is to be performed by that person.

(f)(1) "Dam" means an artificial barrier or obstruction, including any works appurtenant to it and any reservoir created by it, which is or will be placed, constructed, enlarged, altered or repaired so that it does or will impound or divert water and:

(A) Is or will be twenty-five feet or more in height from the natural bed of the stream or watercourse measured at the downstream toe of the barrier and which does or can impound fifteen acre-feet or more of water; or

(B) Is or will be six feet or more in height from the natural bed of the stream or watercourse measured at the downstream toe of the barrier and which does or can impound fifty acre-feet or more of water;

(2) "Dam" does not mean:

(A) Any dam owned by the federal government;

(B) Any dam for which the operation and maintenance of the dam is the responsibility of the federal government;

(C) Farm ponds constructed and used primarily for agricultural purposes, including, but not limited to, livestock watering, irrigation, retention of animal wastes and fish culture and that have no potential to cause loss of human life in the event of embankment failure; or

(D) Road fill or other transportation structures that do not or will not impound water under normal conditions and that have a designed culvert or similar conveyance or capacity that would be used under a state-designed highway at the same location: Provided, That the secretary may apply the provisions of section ten of this article for road fill or other transportation structures that become a hazard to human life or property through the frequent or continuous impoundment of water.

(g) "Deficient dam" means a noncoal-related dam that exhibits one or more design, maintenance or operational problems that may adversely affect the performance of the dam over a period of time or during a major storm or other inclement weather that may cause loss of life or property; or a noncoal-related dam that otherwise fails to meet the requirements of this article.

(h) "Department" means the Department of Environmental Protection.

(i) "Enlargement" means any change in or addition to an existing dam which: (1) Raises the height of the dam; (2) raises or may raise the water storage elevation of the water impounded by the dam; (3) increases or may increase the amount of water impounded by the dam; or (4) increases or may increase the watershed area from which water is impounded by the dam.

(j) "Noncompliant dam owner" means an owner who has received two or more orders to repair or remove a deficient dam without completion of the repairs or removal within time frames established by the secretary.

(k) "Owner" means any person who:

(1) Holds legal possession, ownership or partial ownership of an interest in a dam, its appurtenant works or the real property the dam is situated upon;

(2) Has a lease, easement or right-of-way to construct, operate or maintain a dam; or

(3) Is a sponsoring organization with existing or prior agreement with the Natural Resources Conservation Service for a dam or its appurtenant works constructed with assistance from Public Law 78-534, Section 13 of the Flood Control Act of 1944; Public Law 83-566, the Watershed Protection and Flood Prevention Act of 1954; the pilot watershed program authorized under the heading "Flood Prevention" of the Department of Agriculture Appropriation Act of 1954, Public Law 156, 67 Stat. 214; or Subtitle H of Title XV of the Agriculture and Flood Act of 1981, commonly known as the Resource Conservation and Development Program, 16 U. S. C. §3451: Provided, That the owner of the land upon which a dam is owned, maintained or operated by a sponsoring agency, such as a conservation district or other political subdivision of the state, is not responsible for or liable for repairs, maintenance or damage arising from the regular operation, maintenance, deficiencies or ownership of the dam. The owner of the land shall not be cited as a noncompliant dam owner for any deficiencies of the dam, so long as the owner of the land does not intentionally damage or interfere with the regular operation and maintenance of the dam.

(l) "Person" means any public or private corporation, institution, association, society, firm, organization or company organized or existing under the laws of this or any other state or country; the State of West Virginia; any state governmental agency; any political subdivision of the state or of its counties or municipalities; a sanitary district; a public service district; a drainage district; a conservation district; a watershed improvement district; a partnership, trust or estate; a person or individual; a group of persons or individuals acting individually or as a group; or any other legal entity. The term "person", when used in this article, includes and refers to any authorized agent, lessee or trustee of any of the foregoing or receiver or trustee appointed by any court for any of the foregoing.

(m) "Reservoir" means any basin which contains or will contain impounded water.

(n) "Secretary" means the Secretary of the Department of Environmental Protection.

(o) "Natural Resources Conservation Service" means the Natural Resources Conservation Service of the United States Department of Agriculture or any successor or predecessor agency, including the Soil Conservation Service.

(p) "Water" means any liquid, including any solids or other matter that may be contained in the liquid, which is or may be impounded by a dam.

(q) "Water storage elevation" means the maximum elevation that water can reach behind a dam without encroaching on the freeboard approved for the dam under flood conditions.

§22-14-4. General powers and duties of director; maximum fee established for certificates of approval and annual registration.

The secretary has the following powers and duties:

(a) To control and exercise regulatory jurisdiction over dams as provided for in this article;

(b) To review all applications for a certificate of approval for the placement, construction, enlargement, alteration, repair or removal of any dam;

(c) To grant, modify, amend, revoke, restrict or refuse to grant any certificate of approval if proper or necessary to protect life and property as provided in this article;

(d) To propose, modify, repeal and enforce rules and issue orders, to implement and make effective the powers and duties vested in the secretary by the provisions of this article;

(e) To take any lawful action considered necessary for the effective enforcement of the provisions of this article;

(f) To establish and charge reasonable fees not to exceed $300 for the review of applications for certificates of approval and the issuance thereof and for assessment of an annual registration fee not to exceed $100 for persons holding a certificate of approval for existing dams. The secretary shall promulgate rules to establish a schedule of application fees and to establish annual registration fees: Provided, That no fee shall be assessed for dams designed and constructed by the natural resources conservation service for natural resources conservation districts;

(g) To employ qualified consultants or additional persons as necessary to review applications for certificates of approval and to recommend whether they should be approved, to inspect dams and to enforce the provisions of this article;

(h) To cooperate and coordinate with agencies of the federal government, this state and counties and municipalities of this state to improve, secure, study and enforce dam safety and dam technology within this state;

(i) To investigate and inspect dams as is necessary to implement or enforce the provisions of this article and when necessary to enter the public or private property of any dam owner. The secretary may investigate, inspect or enter private or public property after notifying the dam owner or other person in charge of the dam of an intent to investigate, inspect or enter: Provided, That where the owner or person in charge of the dam is not available, the secretary may investigate, inspect and enter without notice; and

(j) To prepare and publish within a reasonable time, criteria to govern the design, construction, repair, inspection and maintenance of proposed dams herein defined, and to review these criteria annually in order to consider improved technology for inclusion in such criteria.

§22-14-5. Unlawful to place, construct, enlarge, alter, repair, remove or abandon dam without certificate of approval; application required to obtain certificate.

It is unlawful for any person to place, construct, enlarge, alter, repair, remove or abandon any dam under the jurisdiction of the secretary until he or she has first: (a) Filed an application for a certificate of approval with the department; and (b) obtained from the department a certificate of approval: Provided, That routine repairs which do not affect the safety of a dam are not subject to the application and approval requirements. A separate application for a certificate of approval must be submitted by a person for each dam he or she desires to place, construct, enlarge, alter, repair, remove or abandon. One application may be valid for more than one dam involved in a single project or in the formation of a reservoir.

Each application for a certificate of approval shall be made in writing on a form prescribed by the secretary and shall be signed and verified by the applicant. The application shall contain and provide information which may be reasonably required by the secretary to administer the provisions of this article.

In the case of dams designed by the natural resources conservation service for transfer to any political subdivision, the director shall, within sixty days after receipt of a completed application therefor, issue a certificate of approval without review of the plans and specifications: Provided, That the state, its employees and agents are not responsible or liable for errors, omissions or flaws in the design, construction or modification of such dams.

§22-14-6. Plans and specifications for dams to be in charge of registered professional engineer.

Plans and specifications for the placement, construction, enlargement, alteration, repair or removal of dams shall be in the charge of a registered professional engineer licensed to practice in West Virginia. Any plans or specifications submitted to the department shall bear the seal of a registered professional engineer.

§22-14-7. Granting or rejecting applications for certificate of approval by division; publication of notice of application; hearing upon application.

Upon receipt of an application for a certificate of approval and the fee required under the provisions of this article, the secretary shall proceed to consider the application for sufficiency. The secretary shall approve or disapprove the application within sixty days after receipt.

If an application is defective, it shall be returned to the applicant by certified or registered mail, return receipt requested, in order that the applicant may correct any defect: Provided, That a defective application must be returned to the department by the applicant within thirty days after it has been returned to the applicant or it shall be treated as a new application: Provided, however, That for good cause shown, the secretary may extend the thirty-day period.

Upon approval by the secretary of the sufficiency of the application, the applicant shall immediately publish the application as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, the publication area for the publication is the county in which the proposed dam is to be located or in which the existing dam is located. The notice shall include, but not be limited to, the name and address of the owner of the dam and the location of the dam for which the application was filed.

Any person whose life or property may be adversely affected by the issuance of a certificate of approval has a right to a hearing before the secretary if the person demands the hearing in writing within fifteen days of publication of the certificate of approval. The written request for hearing shall include specific objections to the certificate of approval.

Upon receipt by the secretary of the written request for hearing, the secretary shall immediately set a date for the hearing and shall notify the person or persons demanding a hearing. The hearing shall be held within ten days after receipt of the written request. The secretary shall hear evidence from all interested parties and shall either: (1) Refuse to issue a certificate of approval; or (2) issue a certificate of approval which shall be subject to terms, conditions and limitations as the secretary may consider necessary to protect life and property.

Unless otherwise extended by the secretary, a certificate of approval is valid for a period of not more than one year.

§22-14-8. Content of certificates of approval for dams; revocation or suspension of certificates.

Each certificate of approval issued by the secretary under the provisions of this article may contain other terms and conditions as the secretary may prescribe.

The secretary may revoke or suspend any certificate of approval whenever it is determined that the dam for which the certificate was issued constitutes a danger to life and property. If necessary to safeguard life and property, the secretary may also amend the terms and conditions of any certificate by issuing a new certificate containing the revised terms and conditions.

Before any certificate of approval is amended or revoked by the secretary, the secretary shall hold a hearing in accordance with the provisions of article five, chapter twenty-nine-a of this code.

Any person adversely affected by an order entered following the hearing has the right to appeal to the environmental quality board pursuant to the provisions of article one, chapter twenty-two-b of this code.

§22-14-9. Inspections during progress of work on dam.

During the placement, construction, enlargement, repair, alteration or removal of any dam, the secretary shall, either with the department's own engineers or by consulting engineers or engineering organizations, make periodic inspections for the purpose of ascertaining compliance with the certificate of approval. The secretary shall require the owner at his or her expense to perform work or tests as necessary and to provide adequate supervision during the placement, construction, enlargement, repair, alteration or removal of a dam: Provided, That with respect to dams designed by and constructed under the supervision of the natural resources conservation service, as to such dams no state inspections are required.

If at any time during placement, construction, enlargement, repair, alteration or removal of any dam, the secretary finds that the work is not being done in accordance with the provisions of the original or revised certificate of approval, the secretary shall notify the owner by certified or registered mail, return receipt requested, to correct the deficiency, cease and desist work or to show cause as to why the certificate of approval should not be revoked.

The notice shall state the reason or reasons why the work is not in accordance with the certificate of approval. The secretary may order that work on the dam cease until the owner has complied with the notice.

If the secretary finds that amendments, modifications or changes are necessary to ensure the safety of the dam, the secretary may order the owner to revise his or her plans and specifications. If conditions are revealed which will not permit the placement, construction, enlargement, repair, alteration or removal of the dam in a safe manner, the certificate of approval may be revoked.

Immediately upon completion of a new dam or enlargement, repair or alteration of a dam, the owner shall notify the secretary: Provided, That immediately upon completion of a dam constructed under the supervision of the natural resources conservation service, a certification of completion shall be sent to the director by the natural resources conservation service, and a complete set of design documents "as built" plans, and specifications and safety plan of evacuation shall be provided to the director within ninety days after completion of the dam.

§22-14-10. Procedures for handling emergencies involving dams; remedial actions to alleviate emergency; payment of costs of remedial actions to be paid by dam owner.

The owner of a dam has the primary responsibility for determining when an emergency involving a dam exists. When the owner of a dam determines an emergency does exist, the owner shall take necessary remedial action and shall notify the secretary and any persons who may be endangered if the dam should fail.

The secretary shall notify any persons, not otherwise notified, who may be endangered if the dam should fail. The secretary may take any remedial action necessary to protect life and property if: (a) The condition of the dam so endangers life and property that time is not sufficient to permit the issuance and enforcement of an order for the owner to correct the condition; or (b) passing or imminent floods or other conditions threaten the safety of the dam. Remedial actions may include, but are not limited to:

(1) Taking full charge and control of the dam;

(2) Lowering the level of water impounded by the dam by releasing such impounded water;

(3) Completely releasing all water impounded by the dam;

(4) Performing any necessary remedial or protective work at the site of the dam;

(5) Taking any other steps necessary to safeguard life and property.

Once the secretary has taken full charge of the dam, the secretary shall remain in charge and control until in the secretary's opinion it has been rendered safe or the emergency occasioning the action has ceased and the secretary concludes that the owner is competent to reassume control of the dam and its operation. The assumption of control of the dam will not relieve the owner of a dam of liability for any negligent act or acts of the owner or the owner's agent or employee.

When the secretary declares that making repairs to the dam or breaching the dam is necessary to safeguard life and property, repairs or breaching shall be started immediately by the owner, or by the secretary at the owner's expense, if the owner fails to do so. The owner shall notify the secretary at once of any emergency repairs or breaching the owner proposes to undertake and of work he or she has under way to alleviate the emergency. The proposed repairs, breaching and work shall be made to conform with orders of the secretary. The secretary may obtain equipment and personnel for emergency work from any person as is necessary and expedient to accomplish the required work. Any person undertaking work at the request of the department shall be paid by the department and is immune from civil liability under the provisions of section fifteen, article seven, chapter fifty-five of this code.

The costs reasonably incurred in any remedial action taken by the secretary shall be paid out of funds appropriated to the department. All costs incurred by the department shall be promptly repaid by the owner upon request or, if not repaid, the department may recover costs and damages from the owner by appropriate civil action.

§22-14-11. Requirements for dams completed prior to effective date of this section.

The secretary shall give notice to file an application for a certificate of approval to every owner of a dam which was completed prior to the effective date of this section: Provided, That no such notice need be given to a person who has applied for and obtained a certificate of approval on or after July 1, 1973, in accordance with the provisions of the prior enactment of section five of this article. The notice shall be given by certified or registered mail, return receipt requested, to the owner at his or her last address of record in the office of the county assessor of the county in which the dam is located; mailing constitutes service. A separate application for each dam a person owns shall be filed with the director in writing upon forms supplied by him or her and shall include or be accompanied by appropriate information concerning the dam as the secretary requires.

The secretary shall make inspections of such dams or reservoirs at state expense. The secretary shall require owners of dams to perform at their expense work or tests as may reasonably be required to disclose information sufficient to enable the secretary to determine whether to issue a certificate of approval or to issue an order directing further work at the owner's expense necessary to safeguard life and property. For this purpose, the secretary may require an owner to lower the water level of, or to empty, water impounded by the dam adjudged by the secretary to be unsafe. If, upon inspection or upon completion to the satisfaction of the secretary of all work that he or she ordered, the secretary finds that the dam is safe to impound water, a certificate of approval shall be issued.

§22-14-12. Dam owner not relieved of legal responsibilities by any provision of article.

Nothing in this article relieves the owner of a dam of the legal duties, obligations or liabilities incident to the ownership or operation of a dam.

§22-14-13. Offenses and penalties.

(a) Any person who violates any of the provisions of this article or any certificate of approval, order, rule or requirement of the secretary or department is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or incarcerated in a county or regional jail not more than six months, or both fined and incarcerated.

(b) Any person who willfully obstructs, hinders or prevents the secretary or department or its agents or employees from performing the duties imposed on them by the provisions of this article or who willfully resists the exercise of the control and supervision conferred by the provisions of this article upon the secretary or department or its agents or employees or any owner or any person acting as a director, officer, agent or employee of an owner, or any contractor or agent or employee of a contractor who engages in the placement, construction, enlargement, repair, alteration, maintenance or removal of any dam who knowingly does work or permits work to be executed on the dam without a certificate of approval or in violation of or contrary to any approval as provided for by the provisions of this article; and any inspector, agent or employee of the department who has knowledge of and who fails to notify the secretary of unapproved modifications to a dam is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000, or incarcerated in the county jail not more than one year, or both fined and incarcerated.

§22-14-14. Enforcement orders; hearings.

(a) If the secretary, upon inspection, investigation or through other means observes, discovers or learns of a violation of the provisions of this article, any certificate of approval, notice, order or rules issued or promulgated hereunder, he or she may:

(1) Issue an order stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time. An order under this section includes, but is not limited to, any or all of the following: Orders suspending, revoking or amending certificates of approval, orders requiring a person to take remedial action or cease and desist orders;

(2) Seek an injunction in accordance with subsection (c), section fifteen of this article;

(3) Institute a civil action in accordance with subsection (c), section fifteen of this article; or

(4) Request the Attorney General, or the prosecuting attorney of the county in which the alleged violation occurred, to bring a criminal action in accordance with section twelve of this article.

(b) Any person issued a cease and desist order may file a notice of request for reconsideration with the secretary not more than seven days from the issuance of the order and shall have a hearing before the secretary contesting the terms and conditions of the order within ten days of the filing of the notice of a request for reconsideration. The filing of a notice of request for reconsideration does not stay or suspend the execution or enforcement of the cease and desist order.

§22-14-15. Civil penalties and injunctive relief.

(a) Any person who violates any provision of this article, any certificate of approval or any rule, notice or order issued pursuant to this article is subject to a civil administrative penalty, to be levied by the secretary, of not more than $5,000 for each day the violation continues, not to exceed a maximum of $20,000. In assessing any penalty, the secretary shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements as well as any other appropriate factors as may be established by rules proposed by the secretary for legislative approval pursuant to article three, chapter twenty-nine-a of this code. No assessment may be levied pursuant to this subsection until after the alleged violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, notice, order or statement of the certificate of approval's terms that was allegedly violated, a concise statement of the facts alleged to constitute the violation, a statement of the amount of the civil administrative penalty to be imposed and a statement of the alleged violator's right to an informal hearing. The alleged violator has twenty calendar days from receipt of the notice within which to deliver to the secretary a written request for an informal hearing. If no hearing is requested, the notice becomes a final order after the expiration date of the twenty-day period. If a hearing is requested, the secretary shall inform the alleged violator of the time and place of the hearing. Within thirty days following the informal hearing, the secretary shall issue and furnish to the violator a written decision, and the reasons for the decision, concerning the assessment of a civil administrative penalty. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions of this article and the payment of any assessment does not affect the availability of any other enforcement provision in connection with the violation for which the assessment is levied: Provided, That no combination of assessments against a violator shall exceed $20,000 per day of each violation: Provided, however, That any violation for which the violator has paid a civil administrative penalty assessed under this subsection is not subject to a separate civil penalty action under this article to the extent of the amount of the civil administrative penalty paid. Civil administrative penalties shall be levied in accordance with the rules promulgated under the authority of section four of this article. The net proceeds of assessments collected pursuant to this subsection shall be deposited in the dam safety fund established pursuant to section eighteen of this article. Any person adversely affected by the assessment of a civil administrative penalty has the right to appeal to the Environmental Quality Board pursuant to the provisions of article one, chapter twenty-two-b of this code.

(b) No assessment levied pursuant to subsection (a) of this section is due and payable until the procedures for review of the assessment as set out in said subsection have been completed.

(c) Any person who violates any provision of any certificate issued under or subject to the provisions of this article is subject to a civil penalty not to exceed $25,000 per day of the violation and any person who violates any provision of this article or of any rule or who violates any standard or order promulgated or made and entered under the provisions of this article is subject to a civil penalty not to exceed $25,000 per day of the violation. The civil penalty may be imposed and collected only by a civil action instituted by the secretary in the circuit court of Kanawha County or in the county in which the violation or noncompliance exists or is taking place.

Upon application by the secretary, the circuit courts of this state or the judges thereof in vacation may by injunction compel compliance with and enjoin violations of the provisions of this article and rules proposed in accordance with section four of this article, the terms and conditions of any certificate of approval granted under the provisions of this article or any order of the secretary or Environmental Quality Board and the venue of any action shall be in the circuit court of Kanawha County or in the county in which the violation or noncompliance exists or is taking place. The court or the judge thereof in vacation may issue a temporary or preliminary injunction in any case pending a decision on the merits of any injunctive application filed. In seeking an injunction, it is not necessary for the secretary to post bond or to allege or prove at any stage of the proceeding that irreparable damage will occur if the injunction is not issued or that the remedy at law is inadequate. An application for injunctive relief or a civil penalty action under this section may be filed and relief granted notwithstanding the fact that all administrative remedies provided in this article have not been exhausted or invoked against the person or persons against whom the relief is sought.

The judgment of the circuit court upon any application filed or in any civil action instituted under the provisions of this section is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. An appeal shall be sought in the manner provided by law for appeals from circuit courts in other civil cases, except that the petition seeking review of an order in any injunction proceeding must be filed with the Supreme Court of Appeals within ninety days from the date of entry of the judgment of the circuit court.

(d) Upon request of the secretary, the Attorney General or the prosecuting attorney of the county in which the violation occurs shall assist the secretary in any civil action under this section.

(e) In any action brought pursuant to the provisions of this section, the state or any agency of the state which prevails may be awarded costs and reasonable attorney's fees.

§22-14-16. Schedule of application fees established.

The secretary shall promulgate rules in accordance with the provisions of section four of this article, to establish a schedule of application fees which shall be submitted by the applicant to the department together with the application for a certificate of approval filed pursuant to this article. The schedule of application fees shall be designed to establish reasonable categories of certificate application fees based upon the complexity of the permit application review process required by the secretary pursuant to the provisions of this article and the rules promulgated under this article. The secretary shall not process any certificate application pursuant to this article until the certificate application fee has been received.

§22-14-17. Schedule of annual registration fees established.

The secretary shall promulgate rules in accordance with the provisions of section four of this article, to establish a schedule of annual registration fees which shall be assessed annually upon each person holding a certificate of approval issued pursuant to this article. Each person holding a certificate of approval shall pay the prescribed annual registration fee to the department pursuant to the rules promulgated under this article. The schedule of annual registration fees shall be designed to establish reasonable categories of annual registration fees, including, but not limited to, the size of the dam and its classification. Any certificate of approval issued pursuant to this article becomes void without notification to the person holding a certificate of approval when the annual registration fee is more than ninety days past due pursuant to the rules promulgated under this section.

§22-14-18. Continuation of dam safety fund; components of fund.

(a) The special fund designated the Dam Safety Fund hereinafter referred to as "the fund" shall be continued.

(b) All certificate application fees and annual registration fee assessments, any interest or surcharge assessed and collected by the department, interest accruing on investments and deposits of the fund, and any other moneys designated by the department shall be paid into the fund. Accrual of funds shall not exceed three hundred thousand dollars per year, exclusive of application fees. The department shall expend the proceeds of the fund for the review of applications, inspection of dams, payment of costs of remedial emergency actions and enforcement of the provisions of this article.

§22-14-19. Dam Safety Rehabilitation Revolving Fund established; disbursement of fund moneys.

(a) There is created in the state Treasury a special revenue fund known as the Dam Safety Rehabilitation Revolving Fund. The fund shall be comprised of money allocated to the state by the federal government expressly for the purposes of establishing and maintaining a state Dam Safety Rehabilitation Revolving Fund. The fund shall also include all receipts from loans made by the fund, any moneys appropriated by the Legislature, all income from the investment of moneys held in the fund and all other moneys designated for deposit to the fund from any source, public or private. The fund shall operate as a special revenue fund and all deposits and payments into the fund do not expire to the General Revenue Fund, but shall remain in the account and be available for expenditure in succeeding fiscal years.

(b) The fund, to the extent that money is available, shall be used solely to make loans to persons who own an interest in a deficient dam on the list of deficient dams created pursuant to section twenty of this article to finance the engineering, design, alteration, improvement, repair, breaching or removal of the deficient dam necessary to correct or remove the deficiencies and other activities as authorized by a federal grant, a legislative appropriation or by the secretary pursuant to section twenty-two of this article. The fund may also be used to defray costs incurred by the department or the authority in administering the provisions of this subsection.

(c) The secretary, in consultation with the authority, shall promulgate rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to govern the disbursement of moneys from the fund, establish a state deficient dams rehabilitation assistance program to direct the distribution of loans from the fund, establish criteria for eligibility to receive loans from the fund and establish the terms and conditions of the loans, including interest rates and repayment terms. The secretary may initially promulgate rules or amendments to rules as emergency rules pursuant to the provisions of said article.

(d) The secretary and the authority may employ qualified officers, agents, advisors and consultants and other persons necessary to carry out the administration and management of the fund.

(e) The authority shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to govern the pledge of loans to secure bonds of the authority.

(f) Disbursements from the fund shall be authorized for payment in writing by the director of the authority or the director's designee. Moneys in the fund shall not be commingled with other money of the authority.

§22-14-20. Dam Safety Rehabilitation Revolving Fund program.

(a) The secretary shall develop a state list of deficient dams using a priority ranking system based on factors designed by the secretary. Only dams on the list of deficient dams are eligible for a loan from the Dam Safety Rehabilitation Revolving Fund.

(b) The secretary shall develop an application, including eligibility requirements for persons applying for loans to correct or remove deficient dams. The eligibility requirements shall include, at a minimum, that the:

(1) Dam is on the list of deficient dams;

(2) Person is in a state of readiness to proceed to planning, design or construction and expend loan payments in a timely manner;

(3) Person has demonstrated the ability to repay the loan; and

(4) Person is in compliance with section five of this article.

(c) A person who owns an interest in a deficient dam on the list of deficient dams may apply to the department for a loan from the fund on forms designed and approved by the secretary.

(d) Following approval by the secretary of the application for a loan and a determination by the secretary and the authority that moneys are available for a loan, the secretary may direct the authority to enter a loan agreement with the person submitting the approved application.

(e) At the direction of the department pursuant to subsection (d) of this section, the authority shall enter into a loan agreement with a person approved for a loan. The loan agreement is binding under the laws of West Virginia and shall contain provisions as required by the secretary, including:

(1) The cost of the project, the amount of the loan and the terms of repayment of the loan and the security for the loan which may include a deed of trust or other appropriate security instrument creating a lien on the project or any other collateral the secretary may require;

(2) The specific purposes for which the proceeds of the loan are required to be expended, the procedures as to the disbursement of loan proceeds including an estimated monthly draw schedule and the duties and obligations imposed upon the applicant in regard to the acquisition or construction of the project;

(3) The agreement of the applicant to repay the obligations of the applicant under the loan agreement, including provisions that revenue may be pledged for the repayment of the loan together with all interest, fees and charges on the loan and all other financial obligations of the applicant under the loan agreement;

(4) If notes or other interim obligations are being issued by the applicant, the agreement of the applicant to take other repayment actions that are required of the applicant under the loan agreement;

(5) The agreement of the applicant to accept the authority's enforcement remedies pursuant to section twenty-one of this article in the event of any default under the loan; and

(6) The agreement of the applicant to comply with all applicable federal and state statutes and rules and regulations and all applicable local ordinances pertinent to the financing, acquisition, design, construction, operation, maintenance and use of the project.

(f)(1) If the secretary assumes full charge and responsibility over a dam pursuant to section twenty-two of this article, and seeks to expend money from the fund for the purpose of repairing or removing a dam or taking other remedial action, the secretary shall, prior to seeking a requisition from the fund, provide the authority with the following information:

(A) The location of the dam;

(B) The owners of the dam; and

(C) The maximum amount estimated for repairing or removing the dam or taking other remedial action.

(2) The authority shall then determine whether sufficient moneys are available to satisfy the maximum amount estimated for the dam and still meet all loan obligations of the fund.

(g) The obligation of the authority to enter into loan agreements is conditioned on the availability of moneys in the fund in amounts and on terms and conditions as, at the direction of the secretary, will enable the authority to make loans.

(h) The ability of the secretary to use moneys in the fund pursuant to section twenty-two of this article is conditioned upon the availability of moneys in the fund.

§22-14-21. Collection of money due to the fund.

(a) In order to ensure the timely payment of all sums due and owing to the fund under a revolving fund loan agreement between the state and a person, and notwithstanding any provisions of this code to the contrary, the authority has and may, at its option, exercise the following rights and remedies in the event of any default under a loan agreement:

(1) The authority may directly impose, in its own name and for its own benefit, service charges upon all users of a project funded by a loan distributed pursuant to this article and may proceed directly to enforce and collect service charges, together with all necessary costs of the enforcement and collection;

(2) The authority may exercise, in its own name or in the name of and as the agent for a person, all of the rights, powers and remedies of the person with respect to the project or which may be conferred upon the person by statute, rule, or judicial decision, including all rights and remedies with respect to users of the project funded by the loan distributed to that person pursuant to this article; and

(3) The authority may, by civil action, mandamus or other judicial or administrative proceeding, compel performance by a person of all of the terms and conditions of the loan agreement, including:

(A) The adjustment of service charges as required to repay the loan or otherwise satisfy the terms of the loan agreement;

(B) The enforcement and collection of service charges; and

(C) The enforcement of all rights and remedies conferred by statute, rule, regulation or judicial decision, including, but not limited to, all rights associated with a security or other interest in real or personal property with the right to foreclose upon a default under a loan agreement.

 (b) The rights and remedies enumerated in this section are in addition to rights and remedies conferred upon the authority by law or pursuant to the loan agreement.

§22-14-22. Authority of Department of Environmental Protection for deficient dams that are privately owned by a noncompliant dam owner.

(a) The secretary may assume full charge and responsibility over a dam and may expend money from the Dam Safety Rehabilitation Revolving Fund for the purpose of repair or removal of the dam or other remedial action, if:

(1) The dam is a deficient dam;

(2) The dam is privately owned; and

(3) The owner is a noncompliant dam owner.

(b) All costs incurred by the secretary to repair or remove the dam or take other remedial action shall be promptly repaid by the owner upon request or, if not repaid, the secretary may recover costs and damages from the owner by appropriate civil action. Moneys obtained from the civil action shall be promptly deposited in the fund.

§22-15-1. Purpose and legislative findings.

(a) The purpose of this article is to establish a comprehensive program of controlling all phases of solid waste management.

(b) The Legislature finds that solid waste disposal is a universal problem for all of the United States and that West Virginia is committed to participating in the waste stream market and not interfering with the free flow of solid waste into or out of this state. However, the Legislature also recognizes that solid waste disposal has inherent long-term environmental, health and infrastructure impacts on local communities where the solid waste facilities are located. It is the Legislature's intent to establish reasonable uniform requirements on all waste disposed of in this state regardless of origin. Because of the importance and impact associated with the location and operation of solid waste facilities, this article establishes a thorough and balanced application and regulatory process which provides an efficient and reasonable permitting process while affording the state and its citizens full and fair participation in decisions associated with the location, operation and oversight of the solid waste collection and disposal process.

(c) The Legislature further finds that solid waste disposal has inherent risks and negative impact on local communities and specifically finds the following: (1) Uncontrolled, inadequately controlled and improper collection, transportation, processing and disposal of solid waste is a public nuisance and a clear and present danger to people; (2) provides harborages and breeding places for disease-carrying, injurious insects, rodents and other pests harmful to the public health, safety and welfare; (3) constitutes a danger to livestock and domestic animals; (4) decreases the value of private and public property, causes pollution, blight and deterioration of the natural beauty and resources of the state and has adverse economic and social effects on the state and its citizens; (5) results in the squandering of valuable nonrenewable and nonreplenishable resources contained in solid waste; (6) that resource recovery and recycling reduces the need for landfills and extends their life; and that (7) proper disposal, resource recovery or recycling of solid waste is for the general welfare of the citizens of this state.

(d) The Legislature further finds that Class A landfills often create special environmental problems that require statewide coordination of the management of such landfills.

(e) The Legislature further finds based upon engineering, environmental concerns, land-use planning, transportation system networks, public health, safety and welfare, that the amount of solid waste disposed of by solid waste facilities must be limited in order to protect this state's environment and the public in general against adverse impact.

(f) The Legislature further finds that incineration technologies present potentially significant health and environmental problems.

(g) The Legislature further finds that there is a need for efforts to continue to evaluate the viability of future incineration technologies that are both environmentally sound and economically feasible.

(h) The Legislature further finds that composting large quantities of sewage sludge at a single location can seriously impact the local community where the facility is located. The potential adverse impact of noxious odors and environmental and health hazards requires assurances that local communities are not adversely impacted by the location of sewage sludge composting facilities. Further, the newness of the technology and processes for managing sewage sludge processing require careful and evolving regulatory oversight mechanisms, assuring that sewage sludge processing and composting are properly conducted. Therefore, limitations and qualifications for location and management of sewage sludge processing facilities are a necessary and integral part of the management of solid waste in West Virginia.

§22-15-2. Definitions.

Unless the context clearly requires a different meaning, as used in this article the terms:

"Advanced recycling" means a manufacturing process for the conversion of post-use polymers and recovered feedstocks into basic hydrocarbon raw materials, feedstocks, chemicals, and other products like waxes and lubricants through processes that include pyrolysis, gasification, depolymerization, catalytic cracking, hydrogenation, solvolysis, and other similar technologies. The recycled products produced at advanced recycling facilities include, but are not limited to, monomers, oligomers, plastics, plastics and chemical feedstocks, basic and unfinished chemicals, waxes, lubricants, coatings, and other basic hydrocarbons. Advanced recycling shall not be considered solid waste management or solid waste disposal.

"Advanced recycling facility" means a facility that receives, stores, and converts post-use polymers and recovered feedstocks it receives using advanced recycling. An advanced recycling facility is a manufacturing facility subject to applicable department manufacturing regulations for air, water, and land use. Advanced recycling facilities shall not be considered solid waste facilities.

"Agronomic rate" means the whole sewage sludge application rate, by dry weight, designed:

(1) To provide the amount of nitrogen needed by the food crop, feed crop, fiber crop, cover crop, or vegetation on the land; and

(2) To minimize the amount of nitrogen in the sewage sludge that passes below the root zone of the crop or vegetation grown on the land to the groundwater.

"Applicant" means the person applying for a commercial solid waste facility permit or similar renewal permit and any person related to such person by virtue of common ownership, common management, or family relationships as the director may specify, including the following: Spouses, parents, children, and siblings.

"Approved solid waste facility" means a solid waste facility or practice which has a valid permit under this article.

"Back hauling" means the practice of using the same container to transport solid waste and to transport any substance or material used as food by humans, animals raised for human consumption, or reusable item which may be refilled with any substance or material used as food by humans.

"Bulking agent" means any material mixed and composted with sewage sludge.

"Catalytic cracking" is a manufacturing process through which post-use polymers are heated and melted in the absence of oxygen and then processed in the presence of a catalyst to produce valuable raw materials and intermediate and final products, including, but not limited to, plastic monomers, chemicals, waxes, lubricants, plastic and chemical feedstocks, and other basic hydrocarbons.

"Class A facility" means a commercial solid waste facility which handles an aggregate of between 10,000 and 30,000 tons of solid waste per month. Class A facility includes two or more Class B solid waste landfills owned or operated by the same person in the same county, if the aggregate tonnage of solid waste handled per month by such landfills exceeds 9,999 tons of solid waste per month.

"Commercial recycler" means any person, corporation, or business entity whose operation involves the mechanical separation of materials for the purpose of reselling or recycling at least 70 percent by weight of the materials coming into the commercial recycling facility.

“Commercial solid waste facility” means any solid waste facility that accepts solid waste generated by sources other than the owner or operator of the facility and does not include an approved solid waste facility owned and operated by a person for the sole purpose of the disposal, processing, or composting of solid waste created by that person or such person and other persons on a cost-sharing or nonprofit basis and does not include land upon which reused or recycled materials are legitimately applied for structural fill, road base, mine reclamation, and similar applications, and does not include any solid waste facility that accepts solid waste collected pursuant to and under a common carrier certificate of convenience and necessity issued by the Public Service Commission by the owner or operator (or its affiliate(s)) of the solid waste facility for consolidation and subsequent transport to a disposal or recycling facility: Provided, That the owner or operator of the solid waste facility shall comply with §22-15-12 and §22-15-13 of this code: Provided, however, That any such solid waste facility be located on a site that contains a mixed waste processing and resource recovery facility that possesses a solid waste facility permit from the Department of Environmental Protection.

"Compost" means a humus-like material resulting from aerobic, microbial, or thermophilic decomposition of organic materials.

"Composting" means the aerobic, microbial, or thermophilic decomposition of natural constituents of solid waste to produce a stable, humus-like material.

"Commercial composting facility" means any solid waste facility processing solid waste by composting, including sludge composting, organic waste or yard waste composting, but does not include a composting facility owned and operated by a person for the sole purpose of composting waste created by that person or such person and other persons on a cost-sharing or nonprofit basis and shall not include land upon which finished or matured compost is applied for use as a soil amendment or conditioner.

"Cured compost" or "finished compost" means compost which has a very low microbial or decomposition rate which will not reheat or cause odors when put into storage and that has been put through a separate aerated curing cycle stage of 30 to 60 days after an initial composting cycle or compost which meets all regulatory requirements after the initial composting cycle.

"Department" means the Department of Environmental Protection.

"Depolymerization" means a manufacturing process where post-use polymers are broken into smaller molecules such as monomers and oligomers or raw, intermediate, or final products, plastics and chemical feedstocks, basic and unfinished chemicals, waxes, lubricants, coatings, and other basic hydrocarbons. 

"Energy recovery incinerator" means any solid waste facility at which solid wastes are incinerated with the intention of using the resulting energy for the generation of steam, electricity, or any other use not specified herein.

"Gasification" means a manufacturing process through which recovered feedstocks are heated and converted into a fuel and gas mixture in an oxygen-deficient atmosphere and the mixture is converted into valuable raw materials and intermediate and final products, including, but not limited to, plastic monomers, chemicals, waxes, lubricants, plastic and chemical feedstocks, and other basic hydrocarbons that are returned to economic utility in the form of raw materials and products.

"Hydrogenation" is a manufacturing process through which hydrogen is used to remove impurities from post-use polymers or recovered feedstock to enable further processing into valuable raw materials and intermediate and final products, including, but not limited to, plastic monomers, chemicals, waxes, lubricants, plastic and chemical feedstocks, and other basic hydrocarbons.

"Incineration technologies" means any technology that uses controlled flame combustion to thermally break down solid waste, including refuse-derived fuel, to an ash residue that contains little or no combustible materials, regardless of whether the purpose is processing, disposal, electric or steam generation, or any other method by which solid waste is incinerated.

"Incinerator" means an enclosed device using controlled flame combustion to thermally break down solid waste, including refuse-derived fuel, to an ash residue that contains little or no combustible materials.

"Landfill" means any solid waste facility used for the disposal of solid waste on or in the land for the purpose of permanent disposal. The facility is situated, for purposes of this article, in the county where the majority of the spatial area of the facility is located.

"Materials recovery facility" means any solid waste facility at which source-separated materials or materials recovered through a mixed waste processing facility are manually or mechanically shredded or separated for purposes of reuse and recycling, but does not include a composting facility.

"Mature compost" means compost which has been produced in an aerobic, microbial, or thermophilic manner and does not exhibit phytotoxic effects.

"Mixed solid waste" means solid waste from which materials sought to be reused or recycled have not been source-separated from general solid waste.

"Mixed waste processing facility" means any solid waste facility at which materials are recovered from mixed solid waste through manual or mechanical means for purposes of reuse, recycling, or composting.

"Municipal solid waste incineration" means the burning of any solid waste collected by any municipal or residential solid waste disposal company.

"Open dump" means any solid waste disposal which does not have a permit under this article, or is in violation of state law, or where solid waste is disposed in a manner that does not protect the environment.

"Person" or "persons" means any industrial user, public or private corporation, institution, association, firm, or company organized or existing under the laws of this or any other state or country; State of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry; sanitary district; public service district; drainage district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

"Post-use polymer" means a plastic to which all the following apply:

(1) The plastic is derived from any industrial, commercial, agricultural, or domestic activities;

(2) It is not mixed with solid waste or hazardous waste onsite or during processing at the advanced recycling facility;

(3) The plastic’s use or intended use is as a feedstock for the manufacturing of plastic and chemical feedstocks, other basic hydrocarbons, raw materials, or other intermediate products or final products using advanced recycling;

(4) The plastic has been sorted from solid waste and other regulated waste but may contain residual amounts of solid waste such as organic material and incidental contaminants or impurities (e.g., paper labels and metal rings); and

(5) The plastic is processed at an advanced recycling facility or held at the facility prior to processing.

"Publicly owned treatment works" means any treatment works owned by the state or any political subdivision thereof, any municipality or any other public entity which processes raw domestic, industrial, or municipal sewage by any artificial or natural processes in order to remove or so alter constituents as to render the waste less offensive or dangerous to the public health, comfort, or property of any of the inhabitants of this state before the discharge of the plant effluent into any of the waters of this state, and which produces sewage sludge.

"Pyrolysis" means a manufacturing process through which post-use polymers are heated in the absence of oxygen until melted and thermally decomposed and are then cooled, condensed, and converted into valuable raw materials and intermediate and final products, including, but not limited to, plastic monomers, chemicals, waxes, lubricants, plastic and chemical feedstocks, and other basic hydrocarbons, that are returned to economic utility in the form of raw materials or products.

"Recovered feedstock" means one or more of the following materials that has been processed so that it may be used as feedstock in an advanced recycling facility:

(1) Post-use polymers;

(2) Materials for which the United States Environmental Protection Agency has made a nonwaste determination pursuant to 40 C.F.R. 241.3(c), or has otherwise determined are feedstocks and not solid waste;

(3) Recovered feedstock does not include unprocessed municipal solid waste;

(4) Recovered feedstock is not mixed with solid waste or hazardous waste onsite or during processing at an advanced recycling facility.

"Recycling facility" means any solid waste facility for the purpose of recycling at which neither land disposal nor biological, chemical, or thermal transformation of solid waste occurs: Provided, That mixed waste recovery facilities, sludge processing facilities, and composting facilities are not considered recycling facilities nor considered to be reusing or recycling solid waste within the meaning of this article, §22-15A-1 et seq. and §22C-4-1 et seq. of this code.

"Sewage sludge" means solid, semisolid, or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes, but is not limited to, domestic septage, scum, or solids removed in primary, secondary, or advanced wastewater treatment processes and a material derived from sewage sludge. "Sewage sludge" does not include ash generated during the firing of sewage sludge in a sewage sludge incinerator.

"Sewage sludge processing facility" is a solid waste facility that processes sewage sludge for: (A) Land application; (B) incineration; or (C) disposal at an approved landfill. Such processes include, but are not limited to, composting, lime stabilization, thermophilic, microbial, and anaerobic digestion.

"Secretary" means the Secretary of the Department of Environmental Protection or such other person to whom the secretary has delegated authority or duties pursuant to §22-1-1 et seq. of this code.

"Sludge" means any solid, semisolid, residue, or precipitate, separated from or created by a municipal, commercial, or industrial waste treatment plant, water supply treatment plant, air pollution control facility, or any other such waste having similar origin.

"Solid waste" means any garbage, paper, litter, refuse, cans, bottles, waste processed for the express purpose of incineration; sludge from a waste treatment plant; water supply treatment plant or air pollution control facility; and other discarded materials, including offensive or unsightly matter, solid, liquid, semisolid, or contained liquid or gaseous material resulting from industrial, commercial, mining, or community activities but does not include solid or dissolved material in sewage or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources and have permits under §22-5A-1 et seq. of this code, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended, including any nuclear or byproduct material considered by federal standards to be below regulatory concern, or a hazardous waste either identified or listed under §22-5E-1 et seq. of this code or refuse, slurry, overburden, or other wastes or material resulting from coal-fired electric power or steam generation, the exploration, development, production, storage, and recovery of coal, oil, and gas, and other mineral resources placed or disposed of at a facility which is regulated under chapter 22, chapter 22A, or chapter 22B of this code, so long as placement or disposal is in conformance with a permit issued pursuant to those chapters, or post-use polymers and recovered feedstocks converted at an advanced recycling facility or held at the facility prior to conversion.

"Solid waste disposal" means the practice of disposing of solid waste including placing, depositing, dumping, throwing, or causing any solid waste to be placed, deposited, dumped, or thrown.

"Solid waste disposal shed" means the geographical area which the solid waste management board designates and files in the state register pursuant to §16-26-8 of this code.

"Solid waste facility" means any system, facility, land, contiguous land, improvements on the land, structures, or other appurtenances or methods used for processing, recycling, or disposing of solid waste, including landfills, transfer stations, materials recovery facilities, mixed waste processing facilities, sewage sludge processing facilities, commercial composting facilities, and other such facilities not herein specified, but not including land upon which sewage sludge is applied in accordance with §22-15-20 of this code. The facility shall be deemed to be situated, for purposes of this article, in the county where the majority of the spatial area of the facility is located: Provided, That a salvage yard, licensed and regulated pursuant to the terms of §17-23-1 et seq. of this code, is not a solid waste facility and an advanced recycling facility is not a solid waste facility.

"Solid waste facility operator" means any person or persons possessing or exercising operational, managerial, or financial control over a commercial solid waste facility, whether or not the person holds a certificate of convenience and necessity or a permit for the facility.

"Solvolysis" means a manufacturing process through which post-use polymers are purified with the aid of solvents, while heated at low temperatures and/or pressurized to make useful products, allowing additives and contaminants to be separated. The products of solvolysis include monomers, intermediates, valuable chemicals, and raw materials. The process includes, but is not limited to, hydrolysis, aminolysis, ammonoloysis, methanolysis, and glycolysis.

"Source-separated materials" means materials separated from general solid waste at the point of origin for the purpose of reuse and recycling but does not mean sewage sludge.

§22-15-3. Special provision for wood waste.

(a) The purpose of this section is to allow for the combustion of wood waste without a solid waste facility permit and to allow facilities to use wood waste as an alternative fuel.

(b) "Wood waste" means wood residues from logging operations, sawmills, wood product manufacturing, furniture making operations, recycling of wood products and other industrial processes, but does not include wood waste which contains hazardous constituents, including copper chromium arsenate, which would cause such wood waste to be regulated pursuant to article eighteen of this chapter.

(c) For purposes of section two of this article and section two, article four, chapter twenty-two-c of this code:

(1) Wood waste is not "solid waste" unless disposed of at a solid waste facility or an open dump;

(2) Wood waste is a material which may be used as an effective substitute for commercial products or raw material feedstock.

(d) The use of incineration technologies in an energy recovery incinerator for the purposes of combusting wood waste is not prohibited and no solid waste facility permit is required. The provisions of this section do not allow the combustion of wood waste without a source permit from the director if such permit is required by article five of this chapter or the rules promulgated under the provisions of said article five.

(e) The division may promulgate legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, to effectuate the purposes of this section.

§22-15-4. Authority of commissioner of bureau of public health.

Although the director is primarily responsible for the permitting and regulating of solid wastes, the commissioner of the bureau of public health may enforce the public health laws over solid waste management which presents an imminent and substantial endangerment to the public health.

§22-15-5. Powers and duties; rules and rulemaking.

In addition to all other powers, duties, responsibilities and authority granted and assigned to the director in this code and elsewhere described by law, the director is empowered as follows:

(a) The director shall promulgate rules in compliance with the West Virginia administrative procedures act to carry out the provisions of this article including modifying any existing rules and establishing permit application fees up to an amount sufficient to defray the costs of permit review. In promulgating rules the director shall consider and establish requirements based on the quantity of solid waste to be handled, including different requirements for solid waste facilities or approved solid waste facilities which handle more than one hundred tons of solid waste per day, the environmental impact of solid waste disposal, the nature, source or characteristics of the solid waste, potential for contamination of ground, surface and potable waters, requirements for public roadway standards and design for access to the facilities with approval by the commissioner of the Division of Highways, the financial capability of the applicant, soil and geological considerations, environmental and other natural resource considerations.

(b) The director, after public notice and opportunity for public hearing near the affected community, may issue a permit with reasonable terms and conditions for installation, establishment, modification, operation or closure of a solid waste facility: Provided, That the director may deny the issuance of a permit on the basis of information in the application or from other sources including public comment, if the solid waste facility is likely to cause adverse impacts on the environment. The director may also prohibit the installation or establishment of specific types and sizes of solid waste facilities in a specified geographical area of the state based on the above-cited factor and may delete such geographical area from consideration for that type and size solid waste facility.

(c) The director may refuse to grant any permit if he or she has reasonable cause to believe, as indicated by documented evidence, that the applicant, or any officer, director or manager, thereof, or person owning a five percent or more interest, beneficial or otherwise, or other person conducting or managing the affairs of the applicant or of the proposed licensed premises, in whole or in part:

(1) Has demonstrated, either by his or her police record or by his or her record as a permittee under articles eleven through nineteen of this chapter or chapter twenty of this code, a lack of respect for law and order, generally, or for the laws and rules governing the disposal of solid wastes;

(2) Has misrepresented a material fact in applying to the director for a permit;

(3) Has been convicted of a felony or other crime involving moral turpitude;

(4) Has exhibited a pattern of violating environmental laws in any state or the United States or combination thereof; or

(5) Has had any permit revoked under the environmental laws of any state or the United States.

(d) The director or any authorized representative, employee or agent of the division may, at reasonable times, enter onto any approved solid waste facility, open dump or property where solid waste is present for the purpose of making an inspection or investigation of solid waste disposal.

(e) The director or any authorized representative, employee or agent of the division may, at reasonable times, enter any approved solid waste facility, open dump or property where solid waste is present and take samples of the waste, soils, air or water or may, upon issuance of an order, require any person to take and analyze samples of such waste, soil, air or water.

(f) The director may also perform or require a person, by order, to perform any and all acts necessary to carry out the provisions of this article or the rules promulgated thereunder.

(g) The director or his or her authorized representative, employee or agent shall make periodic inspections at every approved solid waste facility to effectively implement and enforce the requirements of this article or its rules and may, in coordination with the commissioner of the Division of Highways, conduct at weigh stations or any other adequate site or facility inspections of solid waste in transit.

(h) The director shall require and set the amount of performance bonds for persons engaged in the practice of solid waste disposal in this state, pursuant to section twelve of this article.

(i) The director shall require: (1) That persons disposing of solid waste at commercial solid waste facilities within the state file with the operator of the commercial solid waste facility records concerning the type, amount and origin of solid waste disposed of by them; and (2) that operators of commercial solid waste facilities within the state maintain records and file them with the director concerning the type, amount and origin of solid waste accepted by them.

(j) Identification of interests. -- The director shall require an applicant for a solid waste facility permit to provide the following information:

(1) The names, addresses and telephone numbers of:

(A) The permit applicant;

(B) Any other person conducting or managing the affairs of the applicant or of the proposed permitted premises, including any contractor for gas or energy recovery from the proposed operation, if the contractor is a person other than the applicant; and

(C) Parties related to the applicant by blood, marriage or business association, including the relationship to the applicant;

(2) The names and addresses of the owners of record of surface and subsurface areas within, and contiguous to, the proposed permit area;

(3) The names and addresses of the holders of record to a leasehold interest in surface or subsurface areas within, and contiguous to, the proposed permit area;

(4) A statement of whether the applicant is an individual, corporation, partnership, limited partnership, government agency, proprietorship, municipality, syndicate, joint venture or other entity. For applicants other than sole proprietorships, the application shall contain the following information, if applicable:

(A) Names and addresses of every officer, general and limited partner, director and other persons performing a function similar to a director of the applicant;

(B) For corporations, the principal shareholders;

(C) For corporations, the names, principal places of businesses and internal revenue service tax identification numbers of United States parent corporations of the applicant, including ultimate parent corporations and United States subsidiary corporations of the applicant and the applicant's parent corporations; and

(D) Names and addresses of other persons or entities having or exercising control over any aspect of the proposed facility that is regulated by the division, including, but not limited to, associates and agents;

(5) If the applicant or an officer, principal shareholder, general or limited partner or other related party to the applicant, has a beneficial interest in, or otherwise manages or controls another person or municipality engaged in the business of solid waste collection, transportation, storage, processing, treatment or disposal, the application shall contain the following information:

(A) The name, address and tax identification number or employer identification number of the corporation or other person or municipality; and

(B) The nature of the relationship or participation with the corporation or other person or municipality;

(6) An application shall list permits or licenses, issued by the division or other environmental regulatory agency to each person or municipality identified in paragraph (1) of this subdivision and to other related parties to the applicant, that are currently in effect or have been in effect in at least part of the previous ten years. This list shall include the type of permit or license, number, location, issuance date and, when applicable, the expiration date;

(7) An application shall identify the solid waste facilities in the state which the applicant or a person or municipality identified in paragraph (1) of this subdivision and other related parties to the applicant currently owns or operates, or owned or operated in the previous ten years. For each facility, the applicant shall identify the location, type of operation and state or federal permits under which they operate or have operated. Facilities which are no longer permitted or which were never under permit shall also be listed.

(k) Compliance information. -- An application shall contain the following information for the ten-year period prior to the date on which the application is filed:

(1) A description of notices of violation, including the date, location, nature and disposition of the violation, that were sent by the division to the applicant or a related party, concerning any environmental law, rule, or order of the division, or a condition of a permit or license. In lieu of a description, the applicant may provide a copy of notices of violation;

(2) A description of administrative orders, civil penalty assessments and bond forfeiture actions by the division, and civil penalty actions adjudicated by the state, against the applicant or a related party concerning any environmental law, rule, or order of the division, or a condition of a permit or license. The description shall include the date, location, nature and disposition of the actions. In lieu of a description, the applicant may provide a copy of the orders, assessments and actions;

(3) A description of a summary, misdemeanor or felony conviction, a plea of guilty or plea of no contest that has been obtained in this state against the applicant or a related party under any environmental law or rule concerning the storage, collection, treatment, transportation, processing or disposal of solid waste. The description shall include the date, location, nature and disposition of the actions;

(4) A description of a court proceeding concerning any environmental law or rule that was not described under paragraph (3) of this subdivision in which the applicant or a related party has been party. The description shall include the date, location, nature and disposition of the proceedings;

(5) A description of a consent order, consent adjudication, consent decree or settlement agreement involving the applicant or a related party concerning any environmental law or rule in which the division, other governmental agencies, the United States environmental protection agency, or a county health department was a party. The description shall include the date, location, nature and disposition of the action. In lieu of a description, the applicant may provide a copy of the order, adjudication, a decree or agreement;

(6) For facilities and activities identified under paragraph (1) of this subdivision, a statement of whether the facility or activity was the subject of an administrative order, consent agreement, consent adjudication, consent order, settlement agreement, court order, civil penalty, bond forfeiture proceeding, criminal conviction, guilty or no contest plea to a criminal charge or permit or license suspension or revocation under the act or the environmental protection acts. If the facilities or activities were subject to these actions, the applicant shall state the date, location, nature and disposition of the violation. In lieu of a description, the applicant may provide a copy of the appropriate document. The application shall also state whether the division has denied a permit application filed by the applicant or a related party, based on compliance status;

(7) When the applicant is a corporation, a list of the principal shareholders that have also been principal shareholders of other corporations which have committed violations of any environmental law or rule. The list shall include the date, location, nature and disposition of the violation, and shall explain the relationship between the principal shareholder and both the applicant and the other corporation;

(8) A description of a misdemeanor or felony conviction, a plea of guilty and a plea of no contest, by the applicant or a related party for violations outside of this state of any environmental protection laws or regulations. The description shall include the date of the convictions or pleas, and the date, location and nature of the offense;

(9) A description of final administrative orders, court orders, court decrees, consent decrees or adjudications, consent orders, final civil penalty adjudications, final bond forfeiture actions or settlement agreements involving the applicant or a related party for violations outside of this state of any environmental protection laws or regulations. The description shall include the date of the action and the location and nature of the underlying violation. In lieu of a description, the applicant may provide a copy of the appropriate document.

(l) All of the information provided by the applicant pursuant to this section is not confidential and may be disclosed pursuant to the provisions of chapter twenty-nine-b of this code.

§22-15-6. Fee for filing a certificate of site approval.

The fee for the certificate of site approval is $25 payable upon the filing of the application therefor with the county, county solid waste authority or regional solid waste authority, as the case may be.

§22-15-7. Special provision for residential solid waste disposal.

All commercial and public landfills shall establish and publish a yearly schedule providing for one day per month on which a person not in the business of hauling or disposing of solid waste may dispose of, in a landfill, an amount of residential solid waste, up to one pick-up truckload or its equivalent, free of all charges and fees: Provided, That the provisions of this section shall not take effect until July 1, 1998. Any person who is not a resident of West Virginia may only participate in the monthly free disposal day upon proof that his or her state of residence would likewise allow West Virginia residents to dispose of residential solid waste in the same or substantially similar manner.

§22-15-8. Limit on the size of solid waste facilities; rulemaking.

(a) On and after October 1, 1991, it is unlawful to operate any commercial solid waste facility that handles between ten thousand and thirty thousand tons of solid waste per month, except as provided in section nine of this article and sections twenty-six, twenty-seven and twenty-eight, articles four and four-a, chapter twenty-two-c of this code.

(b) Except as provided in section nine of this article, the maximum quantity of solid waste which may lawfully be received or disposed of at any commercial solid waste facility is thirty thousand tons per month.

(c) The secretary shall, within the limits contained in this article, place a limit on the amount of solid waste received or disposed of per month in commercial solid waste facilities. The secretary shall consider at a minimum the following criteria in determining a commercial solid waste facility's monthly tonnage limit:

(1) The proximity and potential impact of the solid waste facility upon groundwater, surface water and potable water;

(2) The projected life and design capacity of the solid waste facility;

(3) The available air space, lined acreage, equipment type and size, adequate personnel and wastewater treatment capabilities; and

(4) Other factors related to the environmentally safe and efficient disposal of solid waste.

(d) Within the limits established in this article, the secretary shall determine the amount of sewage sludge which may be safely treated, stored, processed, composted, dumped or placed in a solid waste facility.

(e) The secretary shall promulgate emergency rules and propose for legislative promulgation, legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code, to effectuate the requirements of this section. When developing the rules, the secretary shall consider at a minimum the potential impact of the treatment, storage, processing, composting, dumping or placing sewage sludge at a solid waste facility:

(1) On the groundwater, surface waters and potable waters in the area;

(2) On the air quality in the area;

(3) On the projected life and design capacity of the solid waste facility;

(4) On the available air space, lined acreage, equipment type and size, personnel and wastewater treatment capabilities;

(5) The facility's ability to adequately develop markets and market the product which results from the proper treatment of sewage sludge; and

(6) Other factors related to the environmentally safe and efficient treatment, storage, processing, composting, dumping or placing of sewage sludge at a solid waste facility.

(f) Sewage sludge disposed of at a landfill must contain at least twenty percent solid by weight. This requirement may be met by adding or blending sand, sawdust, lime, leaves, soil or other materials that have been approved by the secretary prior to disposal. Alternative sewage sludge disposal methods can be utilized upon obtaining written approval from the secretary. No facility may accept for land filling in any month sewage sludge in excess of twenty-five percent of the total tons of solid waste accepted at the facility for land filling in the preceding month.

(g) Notwithstanding any other provision of this code to the contrary, a commercial solid waste facility that is not located in a county that is, in whole or in part, within a karst region as determined by the West Virginia Geologic and Economic Survey may lawfully receive drill cuttings and drilling waste generated from horizontal well sites above the monthly tonnage limits of the commercial solid waste facility under the following conditions and limitations:

(1)(A) The drill cuttings and associated drilling waste are placed in a separate cell dedicated solely to the disposal of drill cuttings and drilling waste;

(B) The separate cell dedicated to drill cuttings and associated drilling waste is constructed and maintained pursuant to the standards set out in this article and legislative rules promulgated thereunder; and

(C) On or before March 8, 2014, the facility has either obtained a certificate of need, or amended certificate of need, or has a pending application for a certificate or amended certificate of need, authorizing such separate cell as may be required by the Public Service Commission in accordance with section one-c, article two, chapter twenty-four of this code.

(2) The secretary may only allow those solid waste facilities that applied by December 31, 2013 for a permit modification to construct a separate cell for drill cuttings and associated drilling waste, to accept drill cuttings and associated drilling waste at its commercial solid waste facility without counting the deposited drill cuttings and associated drilling waste towards the landfill's permitted monthly tonnage limits.

(3) No solid waste facility may exclude or refuse to take municipal solid waste in the quantity up to and including its permitted tonnage limit while the facility is allowed to lawfully receive drill cuttings or drilling waste above its permitted tonnage limits.

(h) Any solid waste facility taking drill cuttings and drilling waste must install radiation monitors by January 1, 2015. The secretary shall promulgate emergency and legislative rules to establish limits for unique toxins associated with drill cuttings and drilling waste including, but not limited to heavy metals, petroleum-related chemicals, (benzene, toluene, xylene, barium, chlorides, radium and radon) and establish the procedures the facility must follow if that limit is exceeded: Provided, That said rules shall establish and set forth a procedure to provide that any detected radiation readings above any established radiation limits will require that the solid waste landfill immediately cease accepting all affected drill cuttings and drilling waste until the secretary has inspected said landfill and certified pursuant to established rules and regulations that radiation levels have returned to below the established radiation limits. Any truck load of drill cuttings or drilling waste which exceeds the radiation reading limits shall not be allowed to enter the landfill until inspected and approved by the Department of Environmental Protection.

(i) Except for facilities which meet the requirements of (g)(1) of this section, the total amount of waste received at a commercial solid waste landfill that continues to mix said waste with its municipal solid waste may not exceed the total volume of its permitted capacity for that facility in any month, and the quantities of drill cuttings and drilling waste received at that facility shall be counted and applied toward the facility's established tonnage cap.

(j) On or before July 1, 2015, the secretary shall submit an investigation and report to the Joint Legislative Oversight Commission on Water Resources and the Legislature's Joint Committee on Government and Finance which examines: (1) The hazardous characteristics of leachate collected from solid waste facilities receiving drill cuttings and drilling waste, including, but not limited to, the presence of heavy metals, petroleum related chemicals (benzene, toluene, xylene, etc.) barium, chlorides, radium and radon; (2) the potential negative impacts on the surface water or groundwater resources of this state associated with the collection, treatment and disposal of leachate from such landfills; (3) the technical and economic feasibility and benefits of establishing additional and/or separate disposal locations which are funded, constructed, owned and/or operated by the oil and gas industry; and (4) viable alternatives for the handling, treatment and disposal of drill cuttings, including the potential for processing, reusing and reapplying a portion of the collected drill cuttings as suitable fill material for roads, brownfield development or other projects, instead of disposing of all collected material into landfills.

(k) The secretary shall submit any proposed contract for conducting the studies set forth in subsection (j) of this section for review and preapproval by the Legislature's Joint Committee on Government and Finance.

§22-15-9. Exemption for solid waste facility handling in excess of thirty thousand tons per month.

(a) Notwithstanding any provision in this article, article four, chapter twenty-two-c, article two, chapter twenty-four of this code, any other section of this code, or any prior enactment of the code to the contrary, and notwithstanding any defects in or challenges to any actions which were or are required to be performed in satisfaction of the following criteria, any person who on October 1, 1991, has:

(1) Obtained site approval for a commercial solid waste facility from a county or regional solid waste authority or county commission pursuant to a prior enactment of this code, or has otherwise satisfied the requirements of subsection (a), section twenty-five, article four, chapter twenty-two-c of this code;

(2) Entered into a contract with a county commission regarding the construction and operation of a solid waste facility, which contract contains rates for the disposal of solid waste anticipated to be disposed of at the facility;

(3) Obtained, pursuant to section one-f, article two, chapter twenty-four of this code, following a public hearing, an order from the Public Service Commission approving the rates established in the contract with the county commission; and

(4) An application for a permit for a commercial solid waste facility pending with the Division of Environmental Protection, or is operating under a permit or compliance order, is permitted to handle in excess of the limitation established in section eight of this article up to fifty thousand tons of solid waste per month at a commercial solid waste facility so long as the person complies with the provisions of this section.

(b) Any person desiring to operate a commercial solid waste facility which handles an amount of solid waste per month in excess of the limitation established in section eight of this article, but not exceeding the tonnage limitation described in subsection (a) of this section may file a notice with the county commission of the county in which the facility is or is to be located requesting a countywide referendum. Upon receipt of such notice, the county commission shall order a referendum be placed upon the ballot, not less than fifty-six days before the next primary or general election:

(1) Such referendum will be to determine whether it is the will of the voters of the county that a commercial solid waste facility be permitted to handle more than the limitation established in section eight of this article not to exceed fifty thousand tons per month. Any such election shall be held at the voting precincts established for holding primary or general elections. All of the provisions of the general election laws, when not in conflict with the provisions of this article, apply to voting and elections hereunder, insofar as practicable;

(2) The ballot, or the ballot labels where voting machines are used, shall have printed thereon substantially the following:

"Shall a commercial solid waste facility, permitted to handle up to, but no more than fifty thousand tons of solid waste per month be located within _________________ County, West Virginia?

 / For the facility

 / Against the facility

(Place a cross mark in the square opposite your choice.)"

If a majority of the legal votes cast upon the question is against the facility handling an amount of solid waste of up to fifty thousand tons per month then the division shall not proceed any further with the application. If a majority of the legal votes cast upon the question is in favor of permitting the facility within the county, then the application process as set forth in this article may proceed: Provided, That such vote is not binding on or require the division to issue a permit.

(c) If a person submits to a referendum in accordance with this section, all approvals, certificates and permits granted and all actions undertaken by a regional or county solid waste authority or county commission with regard to the person's commercial solid waste facility within the county under this article or article four, chapter twenty-two-c of this code, or previously enacted sections of articles five-f and nine, chapter twenty of this code are valid, complete and in full compliance with all the requirements of law and any defects contained in such approvals, certificates, permits or actions are cured and such defects may not be invoked to invalidate any such approval, certificate, permit or action.

(d) Notwithstanding any provision of this code to the contrary, any person described in subsection (a) of this section who complies with the referendum requirement of this section and complies with the permitting requirements of the division provided in section ten of this article, shall not be required to comply with the requirements of sections twenty-five, twenty-six, twenty-seven and twenty-eight, article four, chapter twenty-two-c of this code: Provided, That such person is entitled to receive a certificate of need pursuant to the provisions of subsection (a), section one-c, article two, chapter twenty-four of this code to handle the tonnage level authorized pursuant to subsection (a) of this section.

(e) The purpose of this section is to allow any person who satisfies the four criteria contained in subsection (a) of this section, notwithstanding any defects in or challenges to any actions which were or are required to be performed in satisfaction of such criteria, to submit the question of siting a facility that accepts up to fifty thousand tons within the county to a referendum in order to obtain a decision at the county or regional level regarding the siting of the facility and that submission of this question at the county level is the only approval, permit or action required at the county or regional level to establish and site the proposed facility.

§22-15-10. Prohibitions; permits required.

(a) Open dumps are prohibited and it is unlawful for any person to create, contribute to, or operate an open dump or for any landowner to allow an open dump to exist on the landowner’s property unless that open dump is under a compliance schedule approved by the director. The compliance schedule shall contain an enforceable sequence of actions leading to compliance and shall not exceed two years. Open dumps operated prior to April 1, 1988, by a landowner or tenant for the disposal of solid waste generated by the landowner or tenant at his or her residence or farm, are not a violation of this section, if the open dump was not a violation of law on January 1, 1988, and unauthorized dumps which were created by unknown persons are not a violation of this section: Provided, That a person may not contribute additional solid waste to any such dump after April 1, 1988, except that the landowners on which unauthorized dumps have been or are being made are not liable for the unauthorized dumping unless the landowners refuse to cooperate with the division in stopping the unauthorized dumping.

(b) It is unlawful for any person, unless the person holds a valid permit from the division to install, establish, construct, modify, operate, or abandon any solid waste facility. All approved solid waste facilities shall be installed, established, constructed, modified, operated, or abandoned in accordance with §22-15-1 et seq. of this code, plans, specifications, orders, instructions, and rules in effect.

(c) Any permit issued under §22-15-1 et seq. of this code shall be issued in compliance with the requirements of §22-15-1 et seq. of this code, its rules and §22-11-1 et seq. of this code and the rules, promulgated under §22-11-1 et seq. of this code, so that only a single permit is required of a solid waste facility under those two articles. Each permit issued under §22-15-1 et seq. of this code shall have a fixed term not to exceed five years: Provided, That the director may administratively extend a permit beyond its five-year term, if the approved solid waste facility is in compliance with §22-15-1 et seq. of this code, its rules, and §22-11-1 et seq. of this code and the rules promulgated under §22-11-1 et seq. of this code: Provided, however, That the administrative extension may not be for more than one year. Upon expiration of a permit, the division may issue renewal permits in compliance with rules promulgated by the director.

(d) For existing solid waste facilities which formerly held division of health permits which expired by law and for which complete permit applications for new permits pursuant to §22-15-1 et seq. of this code were submitted as required by law, the division may enter an administrative order to govern solid waste activities at the facilities, which may include a compliance schedule, consistent with the requirements of the division’s solid waste management rules, to be effective until final action is taken to issue or deny a permit for the facility pursuant to §22-15-1 et seq. of this code, or until further order of the division.

(e) A person may not dispose of any solid waste in this state in a manner which endangers the environment or the public health, safety, or welfare as determined by the director: Provided, That the carcasses of dead animals may be disposed of in any solid waste facility or in any other manner as provided for in this code. Upon request by the director, the Commissioner of the Bureau for Public Health shall provide technical advice concerning the disposal of solid waste or carcasses of dead animals within the state.

(f) A commercial solid waste facility shall not discriminate in favor of or against the receipt of any waste otherwise eligible for disposal at the facility based on its geographic origin.

(g) In addition to all the requirements of §22-15-1 et seq. of this code and the rules promulgated under §22-15-1 et seq. of this code, the division may not issue a permit to construct a new commercial solid waste facility or to expand the spatial area of an existing facility, unless the Public Service Commission has granted a certificate of need, as provided in §24-2-1c of this code. If the director approves a permit or permit modification, the certificate of need shall become a part of the permit and all conditions contained in the certificate of need shall be conditions of the permit and may be enforced by the division in accordance with the provisions of §22-15-1 et seq. of this code: Provided, That the provisions of this subsection do not apply to materials recovery facilities or mixed waste processing facilities as defined by §22-15-2 of this code, except within a 35-mile radius of a facility sited in a karst geological region and which has been permitted by the West Virginia Department of Environmental Protection as a mixed waste processing facility and has received a certificate of need by July 1, 2016.

(h) The director shall propose legislative rules for promulgation pursuant to §29A-3-1 et seq. of this code which reflect the purposes as set forth in this section.

§22-15-11. Solid waste assessment fee; penalties.

(a) Imposition. —

(1) A solid waste assessment fee is hereby imposed upon the disposal of solid waste at any solid waste disposal facility in this state in the amount of $1.75 per ton or part thereof of solid waste. The fee imposed by this section is in addition to all other fees and taxes levied by law and shall be added to and constitute part of any other fee charged by the operator or owner of the solid waste disposal facility.

(2) Effective July 1, 2021, in addition to the fee set forth in subdivision (1) of this subsection, an additional solid waste assessment fee shall be levied and imposed upon the disposal of solid waste at any solid waste landfill disposal facility in this state. This additional fee shall be in the amount of 20 cents per ton beginning July 1, 2021, 40 cents per ton beginning July 1, 2022, 60 cents per ton beginning July 1, 2023, 80 cents per ton beginning July 1, 2024, and $1.00 per ton beginning July 1, 2025, thereafter or like ratio on any part of a ton of solid waste. The additional fee set forth in this subdivision shall be distributed as follows:

(A) Twenty-five percent of the additional fee shall be distributed equally to each county or regional solid waste authority; and

(B) Seventy-five percent of the additional fee shall be distributed on a per capita basis to each county or regional solid waste authority based on the most recent population projections from the United States Census Bureau.

The proceeds from this fee are to be expended for the reasonable costs of administration of the county or regional solid waste authority including the necessary and reasonable expenses of its members, and any other expenses incurred from refuse cleanup, recycling programs, litter control programs, or any other locally important solid waste programs deemed necessary to fulfill its duties. The Tax Commissioner may promulgate interpretive rules to provide for the distribution of funds as provided by this subdivision.

(b) Collection, return, payment, and records. — The person disposing of solid waste at the solid waste disposal facility shall pay the fees imposed by this section, whether or not such person owns the solid waste, and the fees shall be collected by the operator of the solid waste facility who shall remit it to the Tax Commissioner.

(1) The fees imposed by this section accrues at the time the solid waste is delivered to the solid waste disposal facility.

(2) The operator shall remit the fees imposed by this section to the Tax Commissioner on or before the 15th day of the month next succeeding the month in which the fees accrued. Upon remittance of the fees, the operator is required to file returns on forms and in the manner as prescribed by the Tax Commissioner.

(3) The operator shall account to the state for all fees collected under this section and shall hold them in trust for the state until remitted to the Tax Commissioner.

(4) If any operator fails to collect the fees imposed by this section, he or she is personally liable for such amount as he or she failed to collect, plus applicable additions to tax, penalties, and interest imposed by §11-10-1 et seq. of this code.

(5) Whenever any operator fails to collect, truthfully account for, remit the fees, or file returns with the fees as required in this section, the Tax Commissioner may serve written notice requiring such operator to collect the fees which become collectible after service of such notice, to deposit such fees in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner and to keep the amount of such fees in such account until remitted to the Tax Commissioner. Such notice remains in effect until a notice of cancellation is served on the operator or owner by the Tax Commissioner.

(6) Whenever the owner of a solid waste disposal facility leases the solid waste facility to an operator, the operator is primarily liable for collection and remittance of the fees imposed by this section and the owner is secondarily liable for remittance of the fees imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations under this section, the owner and the operator of the solid waste facility are jointly and severally responsible and liable for compliance with the provisions of this section.

(7) If the operator or owner responsible for collecting the fees imposed by this section is an association or corporation, the officers thereof are liable, jointly and severally, for any default on the part of the association or corporation, and payment of the fees and any additions to tax, penalties, and interest imposed by §11-10-1 et seq. of this code may be enforced against them as against the association or corporation which they represent.

(8) Each person disposing of solid waste at a solid waste disposal facility and each person required to collect the fees imposed by this section shall keep complete and accurate records in such form as the Tax Commissioner may require in accordance with the rules of the Tax Commissioner.

(c) Regulated motor carriers. — The fees imposed by this section and §7-5-22 of this code is considered a necessary and reasonable cost for motor carriers of solid waste subject to the jurisdiction of the Public Service Commission under chapter 24A of this code. Notwithstanding any provision of law to the contrary, upon the filing of a petition by an affected motor carrier, the Public Service Commission shall, within 14 days, reflect the cost of said fees in said motor carrier’s rates for solid waste removal service. In calculating the amount of said fees to said motor carrier, the commission shall use the national average of pounds of waste generated per person per day as determined by the United States Environmental Protection Agency.

(d) Definition of “solid waste disposal facility”. — For purposes of this section, the term “solid waste disposal facility” means any approved solid waste facility or open dump in this state, and includes a transfer station when the solid waste collected at the transfer station is not finally disposed of at a solid waste disposal facility within this state that collects the fees imposed by this section. Nothing herein authorizes in any way the creation or operation of or contribution to an open dump.

(e) Exemptions. — The following transactions are exempt from the fees imposed by this section:

(1) Disposal of solid waste at a solid waste facility: (A) By the person who owns, operates, or leases the solid waste disposal facility if it is used exclusively to dispose of waste originally produced by that person in his or her regular business or personal activities; (B) by persons utilizing the facility on a cost-sharing or nonprofit basis; or (C) by a mixed waste processing and resource recovery facility as those facilities are defined in code or rule and which processes a minimum of 70 percent of the material brought to the facility on any given day on a 30-day aggregate basis;

(2) Reuse or recycling of any solid waste;

(3) Disposal of residential solid waste by an individual not in the business of hauling or disposing of solid waste on such days and times as designated by the secretary is exempt from the solid waste assessment fees; and

(4) Disposal of solid waste at a solid waste disposal facility by a commercial recycler which disposes of 30 percent or less of the total waste it processes for recycling. In order to qualify for this exemption each commercial recycler must keep accurate records of incoming and outgoing waste by weight. Such records must be made available to the appropriate inspectors from the division, upon request.

(f) Procedure and administration. — Notwithstanding §11-10-3 of this code, each and every provision of the West Virginia Tax Procedure and Administration Act set forth in §11-10-1 et seq. of this code shall apply to the imposed by this section with like effect as if said act were applicable only to the fees imposed by this section and were set forth in extenso herein.

(g) Criminal penalties. — Notwithstanding §11-9-2 of this code, sections three through seventeen, article nine, chapter eleven of this code shall apply to the fees imposed by this section with like effect as if said sections were applicable only to the fees imposed by this section and were set forth in extenso herein.

(h) Dedication of proceeds. – Except as provided in subdivision (2), subsection (a) of this section, the net proceeds of the fees collected by the Tax Commissioner pursuant to this section shall be deposited at least monthly in an account designated by the secretary. The secretary shall allocate 25 cents for each ton of solid waste disposed of in this state upon which the fees imposed by this section is collected and shall deposit the total amount so allocated into the Solid Waste Reclamation and Environmental Response Fund to be expended for the purposes hereinafter specified. The first $1 million of the net proceeds of the fees imposed by this section collected in each fiscal year shall be deposited in the Solid Waste Enforcement Fund and expended for the purposes hereinafter specified. The next $250,000 of the net proceeds of the fees imposed by this section collected in each fiscal year shall be deposited in the Solid Waste Management Board Reserve Fund, and expended for the purposes hereinafter specified: Provided, That in any year in which the Water Development Authority determines that the Solid Waste Management Board Reserve Fund is adequate to defer any contingent liability of the fund, the Water Development Authority shall so certify to the secretary and the secretary shall then cause no less than $50,000 nor more than $250,000 to be deposited to the fund: Provided, however, That in any year in which the Water Development Authority determines that the Solid Waste Management Board Reserve Fund is inadequate to defer any contingent liability of the fund, the Water Development Authority shall so certify to the secretary and the secretary shall then cause not less than $250,000 nor more than $500,000 to be deposited in the fund: Provided further, That if a facility owned or operated by the State of West Virginia is denied site approval by a county or regional solid waste authority, and if such denial contributes, in whole or in part, to a default, or drawing upon a reserve fund, on any indebtedness issued or approved by the Solid Waste Management Board, then in that event the Solid Waste Management Board or its fiscal agent may withhold all or any part of any funds which would otherwise be directed to such county or regional authority and shall deposit such withheld funds in the appropriate reserve fund. The secretary shall allocate the remainder, if any, of said net proceeds among the following three special revenue accounts for the purpose of maintaining a reasonable balance in each special revenue account, which are hereby continued in the State Treasury:

(1) The Solid Waste Enforcement Fund which shall be expended by the secretary for administration, inspection, enforcement, and permitting activities established pursuant to this article;

(2) The Solid Waste Management Board Reserve Fund which shall be exclusively dedicated to providing a reserve fund for the issuance and security of solid waste disposal revenue bonds issued by the solid waste management board pursuant to §22C-3-1 et seq. of this code;

(3) The Solid Waste Reclamation and Environmental Response Fund which may be expended by the secretary for the purposes of reclamation, cleanup, and remedial actions intended to minimize or mitigate damage to the environment, natural resources, public water supplies, water resources and the public health, safety, and welfare which may result from open dumps or solid waste not disposed of in a proper or lawful manner.

(i) Findings. — In addition to the purposes and legislative findings set forth in §22-15-1 of this code, the Legislature finds as follows:

(1) In-state and out-of-state locations producing solid waste should bear the responsibility of disposing of said solid waste or compensate other localities for costs associated with accepting such solid waste;

(2) The costs of maintaining and policing the streets and highways of the state and its communities are increased by long distance transportation of large volumes of solid waste; and

(3) Local approved solid waste facilities are being prematurely depleted by solid waste originating from other locations.

(j) The Gas Field Highway Repair and Horizontal Drilling Waste Study Fund is hereby created as a special revenue fund in the State Treasury to be administered by the West Virginia Division of Highways and to be expended only on the improvement, maintenance, and repair of public roads of three lanes or less located in the county where the waste is generated through the Division of Highways county office in that county that are identified by the Commissioner of the Division of Highways as having been damaged by trucks and other traffic associated with horizontal well drilling sites or the disposal of waste generated by such sites, and that experience congestion caused, in whole or in part, by such trucks and traffic that interferes with the use of said roads by residents in the vicinity of such roads: Provided, That up to $750,000 from such fund shall be made available to the Department of Environmental Protection from the same fund to offset contracted costs incurred by the Department of Environmental Protection while undertaking the horizontal drilling waste disposal studies mandated by the provisions of §22-15-8(j) of this code. Any balance remaining in the special revenue account at the end of any fiscal year shall not revert to the General Revenue Fund but shall remain in the special revenue account and shall be used solely in a manner consistent with this section. The fund shall consist of the fee provided for in subsection (k) of this section.

(k) Horizontal drilling waste assessment fee. — An additional solid waste assessment fee is hereby imposed upon the disposal of drill cuttings and drilling waste generated by horizontal well sites in the amount of $1 per ton, which fee is in addition to all other fees and taxes levied by this section or otherwise and shall be added to and constitute part of any other fee charged by the operator or owner of the solid waste disposal facility: Provided, That the horizontal drilling waste assessment fee shall be collected and administered in the same manner as the solid waste assessment fee imposed by this section, but shall be imposed only upon the disposal of drill cuttings and drilling waste generated by horizontal well sites.

§22-15-12. Performance bonds; amount and method of bonding; bonding requirements; period of bond liability.

(a) After a solid waste permit application has been approved pursuant to this article, or once operations have commenced pursuant to a compliance order, but before a permit has been issued, each operator of a commercial solid waste facility shall furnish bond, on a form to be prescribed and furnished by the director, payable to the State of West Virginia and conditioned upon the operator faithfully performing all of the requirements of this article, rules promulgated hereunder and the permit. The amount of the bond required shall be determined by the director based upon the total estimated cost to the state of completing final closure according to the permit granted to such facility and such measures as are necessary to prevent adverse effects upon the environment; such measures include, but are not limited to, satisfactory monitoring, post-closure care, leachate treatment and remedial measures: Provided, That the amount of the bond shall be sufficient to conform to and be consistent with the financial assurance requirements set forth under Subtitle D of the federal Resource Conservation and Recovery Act, 42 U. S. C. §§6901 et seq. and the regulations promulgated thereunder. All bonds required to be posted shall be consistent, whether the facility is publicly or privately owned or operated. All permits shall be bonded for at least $10,000. The bond shall cover either: (1) The entire area to be used for the disposal of solid waste; or (2) that increment of land within the permit area upon which the operator will initiate and conduct commercial solid waste facility operations within the initial term of the permit pursuant to legislative rules promulgated by the director pursuant to chapter twenty-nine-a of this code. If the operator chooses to use incremental bonding, as succeeding increments of commercial solid waste facility operations are to be initiated and conducted within the permit area, the operator shall file with the director an additional bond or bonds to cover such increments in accordance with this section: Provided, however, That once the operator has chosen to proceed with bonding either the entire area to be used for the disposal of solid waste or with incremental bonding, the operator shall continue bonding in that manner for the term of the permit.

(b) The period of liability for performance bond coverage shall commence with issuance of a permit and continue for the full term of the permit and for a period of up to thirty full years after final closure of the permit site: Provided, That any further time period necessary to achieve compliance with the requirements in the closure plan of the permit is considered an additional liability period.

(c) The form of the performance bond shall be approved by the director and may include, at the option of the director, surety bonding, collateral bonding (including cash and securities), establishment of an escrow account, letters of credit, performance bonding fund participation (as established by the director), self-bonding or a combination of these methods.

If collateral bonding is used, the operator may elect to deposit cash, or collateral securities or certificates as follows: Bonds of the United States or its possessions, of the federal land bank, or of the homeowners' loan corporation; full faith and credit general obligation bonds of the State of West Virginia, or other states, and of any county, district or municipality of the State of West Virginia or other states; or certificates of deposit in a bank in this state, which certificates shall be in favor of the division. The cash deposit or market value of such securities or certificates shall be equal to or greater than the sum of the bond. The director shall, upon receipt of any such deposit of cash, securities or certificates, promptly place the same with the treasurer of the State of West Virginia whose duty it is to receive and hold the same in the name of the state in trust for the purpose for which the deposit is made when the permit is issued. The operator making the deposit is entitled from time to time to receive from the state Treasurer, upon the written approval of the director, the whole or any portion of any cash, securities or certificates so deposited, upon depositing with the treasurer in lieu thereof, cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the bond.

(d) Within twelve months prior to the expiration of the thirty-year period following final closure, the division will conduct a final inspection of the facility. The purpose of the inspection is to determine compliance with this article, the division's rules, the terms and conditions of the permit, orders of the division and the terms and conditions of the bond. Based upon this determination, the division will either forfeit the bond prior to the expiration of the thirty-year period following final closure, or release the bond at the expiration of the thirty-year period following final closure. Bond release requirements shall be provided in rules promulgated by the director.

(e) If the operator of a commercial solid waste facility abandons the operation of a solid waste disposal facility for which a permit is required by this article or if the permittee fails or refuses to comply with the requirements of this article in any respect for which liability has been charged on the bond, the director shall declare the bond forfeited and shall certify the same to the Attorney General who shall proceed to enforce and collect the amount of liability forfeited thereon, and where the operation has deposited cash or securities as collateral in lieu of corporate surety, the director shall declare said collateral forfeited and shall direct the state Treasurer to pay said funds into a waste management fund to be used by the director to effect proper closure and to defray the cost of administering this article. Should any corporate surety fail to promptly pay, in full, forfeited bond, it is disqualified from writing any further surety bonds under this article.

§22-15-13. Pre-siting notice.

Any person investigating an area for the purpose of siting a commercial solid waste facility where no current solid waste permit exists, in order to determine a feasible, approximate location, shall prior to filing an application for a solid waste permit publish a Class II legal advertisement in a qualified newspaper serving the county where the proposed site is to be located. Such notice shall inform the public of the location, nature and other details of the proposed activity as prescribed in rules promulgated by the director. Within five days of such publication such person shall file with the director a pre-siting notice, which shall be made in writing on forms prescribed by the director and shall be signed and verified by the applicant. Such notice shall contain a certification of publication from a qualified newspaper, description of the area, the period of investigative review, a United States geological survey topographic map and a map showing the location of property boundaries of the area proposed for siting and other such information as required by rules promulgated pursuant to this section. The director shall hold a public hearing on the pre-siting notice in the area potentially affected. The director shall define pre-siting activities by promulgating legislative rules pursuant to chapter twenty-nine-a of this code. The pre-siting notice, as prescribed by the director, shall also be filed with the county or regional solid waste authority, established pursuant to article four, chapter twenty-two-c of this code, according to the county or region in which the proposed site is located within five days of the publication of the notice.

§22-15-14. Limitations on permits; encouragement of recycling.

(a) The director shall by rules promulgated in accordance with chapter twenty-nine-a of this code establish standards and criteria applicable to commercial solid waste facilities for the visual screening of such facilities from any interstate highway, turnpike, federal and state primary highway or scenic parkway. The director shall not issue a permit under this article to install, establish, construct or operate any commercial solid waste facility without proper visual screening from any interstate highway, turnpike, federal or state primary highway or scenic parkway.

(b) The director shall give substantial deference and consideration to the county or regional litter and solid waste control plan approved pursuant to article four, chapter twenty-two-c of this code and to the comprehensive county plan adopted by the county commission pursuant to article twenty-four, chapter eight of this code in the issuance or the renewal of any permit under this article: Provided, That the authority and discretion of the director under this article is not diminished or modified by this subsection.

(c) The director is authorized and directed to promulgate legislative rules pursuant to chapter twenty-nine-a of this code encouraging each commercial solid waste facility and each person, partnership, corporation and governmental agency engaged in the commercial collection, transportation, processing and disposal of solid waste to recycle paper, glass, plastic and aluminum materials and such other solid wastes as the director may specify.

(d) The director is authorized and directed to promulgate legislative rules pursuant to chapter twenty-nine-a of this code encouraging each person, partnership, corporation and governmental agency subscribing to solid waste collection services to segregate paper, glass, plastic and aluminum material, and such other solid waste material as the director may specify, prior to collection of such wastes at their source for purposes of recycling.

(e) Under no condition shall transloading solid waste materials be permitted within a municipality except those facilities owned or operated on behalf of the municipality in which the facility is located.

§22-15-15. Orders, inspections and enforcement; civil and criminal penalties.

(a) If the secretary, upon inspection or investigation by duly authorized representatives or through other means observes, discovers or learns of a violation of this article, its rules, article eleven of this chapter or its rules, or any permit or order issued under this article, he or she shall:

(1) Issue an order stating with reasonable specificity the nature of the alleged violation and requiring compliance immediately or within a specified time. An order under this section includes, but is not limited to, any or all of the following: Orders suspending, revoking or modifying permits, orders requiring a person to take remedial action or cease and desist orders;

(2) Seek an injunction in accordance with subsection (e) of this section;

(3) Institute a civil action in accordance with subsection (e) of this section; or

(4) Request the Attorney General, or the prosecuting attorney of the county wherein the alleged violation occurred, to bring an appropriate action, either civil or criminal in accordance with subsection (b) of this section.

(b) Any person who violates this article, or permits issued pursuant to this article or rules or orders issued by the secretary or board is subject to administrative, civil and criminal sanctions as follows:

(1) Any person who fails or refuses to discharge any duty imposed upon him or her by this article or by any rule of the secretary promulgated pursuant to the provisions and intent of this article or by an order of the secretary or board, or who fails or refuses to apply for and obtain a permit as required by the provisions of this article, or who fails or refuses to comply with any term or condition of the permit, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or imprisoned in the county or regional jail not more than six months, or both fined and imprisoned.

(2) Any person who intentionally misrepresents any material fact in an application, record, report, plan or other document filed or required to be maintained under the provisions of this article or any rules promulgated by the secretary thereunder is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $10,000, or imprisoned in a county or regional jail not more than six months, or both fined and imprisoned.

(3) Any person who willfully or negligently violates any provision of any permit issued under or subject to the provisions of this article or who willfully or negligently violates any provision of this article or any rule of the secretary or any order of the secretary or board is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $2,500 nor more than $25,000 per day of violation, or imprisoned in a county or regional jail not more than one year, or both fined and imprisoned.

(4) Any person convicted of a second offense or subsequent willful violation of subdivision (2) or (3) of this subsection or knowingly and willfully violating any provision of any permit, rule or order issued under or subject to the provisions of this article or knowingly and willfully violating any provision of this article, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than three years, or fined not more than $50,000 for each day of violation, or both fined and imprisoned.

(5) Any person convicted of accumulating or disposing of one thousand or more tires in violation of this article is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than five years and shall be required to clean up and properly dispose of the waste tires or reimburse the state agency or agencies for costs incurred in cleaning up the waste tires. In addition, any person so convicted may be fined not more than $50,000 for each day of the continued violation.

(6) A person may be prosecuted and convicted under the provisions of this section, notwithstanding that the administrative remedies provided in this article have not been pursued or invoked against the person and notwithstanding that civil action for the imposition and collection of a civil penalty or an application for an injunction under the provisions of this article has not been filed against the person.

(7) Where a person holding a permit is carrying out a program of pollution abatement or remedial action in compliance with the conditions and terms of the permit, that person is not subject to criminal prosecution for pollution recognized and authorized by the permit.

(c) Any person who violates any provision of this article, any permit or any rule or order issued pursuant to this article is subject to a civil administrative penalty, to be levied by the secretary, of not more than $5,000 for each day of the violation, not to exceed a maximum of $20,000:

(1) In assessing a penalty, the secretary shall take into account the seriousness of the violation and any good faith efforts to comply with the applicable requirements as well as any other appropriate factors as may be established by the secretary by rules promulgated pursuant to this article and article three, chapter twenty-nine-a of this code. No assessment shall be levied pursuant to this subsection until after the alleged violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, order or statement of permit conditions that was allegedly violated, a concise statement of the facts alleged to constitute the violation, a statement of the amount of the administrative penalty to be imposed and a statement of the alleged violator's right to an informal hearing. The alleged violator has twenty calendar days from receipt of the notice within which to deliver to the secretary a written request for an informal hearing. If no hearing is requested, the notice becomes a final order after the expiration of the twenty-day period. If a hearing is requested, the secretary shall inform the alleged violator of the time and place of the hearing. The secretary may appoint an assessment officer to conduct the informal hearing and then make a written recommendation to the secretary concerning the assessment of a civil administrative penalty. Within thirty days following the informal hearing, the secretary shall issue and furnish to the alleged violator a written decision, and the reasons therefor, concerning the assessment of a civil administrative penalty. Within thirty days after notification of the secretary's decision, the alleged violator may request a formal hearing before the environmental quality board in accordance with the provisions of section sixteen of this article. The authority to levy a civil administrative penalty is in addition to all other enforcement provisions of this article and the payment of any assessment does not affect the availability of any other enforcement provision in connection with the violation for which the assessment is levied: Provided, That no combination of assessments against a violator under this section shall exceed $25,000 for each day of a violation: Provided, however, That any violation for which the violator has paid a civil administrative penalty assessed under this section shall not be the subject of a separate civil penalty action under this article to the extent of the amount of the civil administrative penalty paid. All administrative penalties shall be levied in accordance with rules issued pursuant to subsection (a), section five of this article. The net proceeds of assessments collected pursuant to this subsection shall be deposited in the solid waste reclamation and environmental response fund established in subdivision (3), subsection (h), section eleven of this article;

(2) No assessment levied pursuant to subdivision (1) of this subsection becomes due and payable until the procedures for review of the assessment as set out in said subsection have been completed.

(d) Any person who violates any provision of this article, any permit or any rule or order issued pursuant to this article is subject to a civil penalty not to exceed $25,000 for each day of the violation, which penalty shall be recovered in a civil action either in the circuit court wherein the violation occurs or in the circuit court of Kanawha County.

(e) The secretary may seek an injunction, or may institute a civil action against any person in violation of any provisions of this article or any permit, rule or order issued pursuant to this article. In seeking an injunction, it is not necessary for the secretary to post bond nor to allege or prove at any stage of the proceeding that irreparable damage will occur if the injunction is not issued or that the remedy at law is inadequate. An application for injunctive relief or a civil penalty action under this section may be filed and relief granted notwithstanding the fact that all administrative remedies provided for in this article have not been exhausted or invoked against the person or persons against whom relief is sought.

(f) Upon request of the secretary, the Attorney General or the prosecuting attorney of the county in which the violation occurs shall assist the secretary in any civil action under this section.

(g) In any civil action brought pursuant to the provisions of this section, the state, or any agency of the state which prevails may be awarded costs and reasonable attorney's fees.

(h) In addition to all other grounds for revocation, the secretary shall revoke a permit for any of the following reasons:

(1) Fraud, deceit or misrepresentation in securing the permit, or in the conduct of the permitted activity;

(2) Offering, conferring or agreeing to confer any benefit to induce any other person to violate the provisions of this chapter, or of any other law relating to the collection, transportation, treatment, storage or disposal of solid waste, or of any rule adopted pursuant thereto;

(3) Coercing a customer by violence or economic reprisal or the threat thereof to utilize the services of any permittee; or

(4) Preventing, without authorization of the secretary, any permittee from disposing of solid waste at a licensed treatment, storage or disposal facility.

§22-15-16. Appeal procedures.

Any person having an interest which is or may be adversely affected, or who is aggrieved by an order of the director, or by the issuance or denial of a permit or by the permit's terms or conditions, may appeal to the environmental quality board as provided in article one, chapter twenty-two-b of this code.

§22-15-17. Limited extension of solid waste facility closure deadline.

(a) The director may grant an extension of the closure deadline up to September 30, 1994, to a solid waste facility required under the terms of an extension granted pursuant to this subsection to close by June 30, 1993, or required by solid waste management rules to close by September 30, 1993, provided that the solid waste facility:

(1) Has a solid waste facility permit, or by March 1, 1993, had an application to obtain a permit pending before the division for the construction of a landfill in accordance with title forty-seven, series thirty-eight, solid waste management rules; and

(2) Has a certificate of need or had an application pending therefor, from the Public Service Commission; and

(3) Has been determined by the director to pose no significant hazard to public health, safety or the environment; and

(4) Has entered into a compliance schedule with the Division of Environmental Protection to be in full compliance, no later than September 30, 1994, with title forty-seven, series thirty-eight, solid waste management rules or to be in full compliance, no later than September 30, 1994, with pre-closure provisions of title forty-seven, series thirty-eight, solid waste management rules: Provided, That no such extension of closure deadline shall extend beyond the thirty-first day of March, 1994, or such date as any landfill installs a composite liner system, for any landfill in a county in which there is also located a commercial solid waste landfill which has installed a composite liner system in accordance with the requirements of the solid waste management rules.

(b) Any solid waste facility seeking to extend its closure deadline until September 30, 1994, shall submit to the director, no later than April 30, 1993, an application sufficient to demonstrate compliance with the requirements of subsection (a) of this section. The director shall grant or deny any application within thirty days of receipt thereof: Provided, That as a condition precedent for granting such closure extension, a solid waste facility must enter into an agreement with the director that the solid waste facility shall, no later than September 30, 1993, complete and submit to the director an analysis of the facility's specific requirements and cost to comply with the applicable design criteria, groundwater monitoring provisions of title forty-seven, series thirty-eight, solid waste management rules and the corrective action, financial assurance and closure and post-closure care provisions of Subtitle (d) of the federal Resource Conservation and Recovery Act, 42 U.S.C. 6941-6949.

(c) Any party who is aggrieved by an order of the director regarding the grant or denial of an extension of the closure deadline for a solid waste facility pursuant to this section may obtain judicial review thereof in the same manner as provided in section four, article five, chapter twenty-nine-a of this code, which provisions shall apply to and govern such review with like effect as if the provisions of said section were set forth in extenso in this section, except that the petition shall be filed, within the time specified in section four, article five, chapter twenty-nine-a of this code, in the circuit court of the county where such facility exists: Provided, That the court shall not in any manner permit the continued acceptance of solid waste at the facility pending review of the decision of the director of the division.

(d) The judgment of the circuit court shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals, in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code, except that notwithstanding the provisions of said section, the petition seeking such review must be filed with said Supreme Court of Appeals within thirty days from the date of entry of the judgment of the circuit court.

(e) Notwithstanding any other provision of this article, the director, upon receipt of a request for an extension, shall grant an extension of the closure deadline up to September 30, 1994, to any solid waste facility required to close on the thirty-first day of March, 1993, or September 30, 1993, which is owned by a solid waste authority or owned by a municipality and which accepts at least thirty percent of its waste from within the county in which it is located and which has not been determined by the director to pose a significant risk to human health and safety or cause substantial harm to the environment and which could not be granted an extension up to September 30, 1994, pursuant to the terms of subsections (a) and (b) of this section if:

(1) The cost of transporting the waste is prohibitive; or

(2) The cost of disposing of waste in other solid waste facilities within the wasteshed would increase.

(f) Notwithstanding any other provision of this article, the director shall grant an extension of the closure deadline up to September 30, 1994, to any solid waste landfill which, on or before March 1, 1993, has entered into a compliance schedule with the director for the construction of a transfer station or to any solid waste landfill which on March 1, 1993, is already in the process of constructing a solid waste transfer station and applies by April 1, 1993, to enter into with the director, a compliance schedule for the completion of the transfer station: Provided, That upon the completion of the transfer station and commencement of operations of the transfer station, such landfill shall cease accepting solid waste for disposal.

(g) Notwithstanding any other provision of this article, any commercial solid waste facility which has demonstrated and continues to be in compliance with the requirements of subsections (a) and (b) of the prior enactment of this section in chapter one hundred twenty-five, acts of the Legislature, regular session, 1993, may make application by August 1, 1994, to the director for a special extension of the closure deadline up to December 31, 1994. Such application shall set forth all reasons why the applicant should receive a special extension. The director shall grant or deny an application within thirty days of receipt thereof. As a condition for being granted a special extension, the solid waste facility permittee must meet one of the following conditions:

(1) Have started construction of an approved composite liner system; or

(2) Have obtained financing for such construction; or

(3) Have demonstrated good faith efforts to obtain such financing and the director has made a finding, in writing, that such financing and construction is likely to occur within the extension period and that the facility is necessary to the waste management plan of the wasteshed or the geographic area served.

§22-15-18. Condition on receiving permit.

(a) Notwithstanding any other provision of this code, a permit application for a solid waste landfill facility submitted by any person who has owned, operated or held a permit for a solid waste landfill upon which funds have been, or are to be, expended on pursuant to the provisions of article sixteen of this chapter, may be approved under the provisions of this article only if all funds so expended are repaid in full, plus interest, or arrangements, satisfactory to the director, are made for the repayment of the funds and the interest. The repayment shall be made a specific condition of a permit.

(b) In the case where a permittee has entered into a repayment arrangement with the director in order to obtain a permit under this article, the repayment of the funds shall be considered by the Public Service Commission a reasonable cost of operating the newly permitted landfill in determining rates to be charged at the landfill.

§22-15-19. Municipal and commercial solid waste incineration and backhauling prohibited; exceptions.

(a) Notwithstanding any other provision of this code to the contrary, it is unlawful to install, establish or construct a new municipal or commercial solid waste facility utilizing incineration technology for the purpose of solid waste incineration: Provided, That such prohibition does not include the development of pilot projects which may include tire or tire material incineration, designed to analyze the efficiency and environmental impacts of incineration technologies: Provided, however, That any pilot project proposing to incinerate solid waste must comply with regulatory requirements for solid waste facilities established in this chapter and shall demonstrate with particularity to the division that it has the financial and technical ability to comply with all rules applicable to solid waste facilities utilizing incineration technologies. The division shall require a surety bond, deposit or similar instrument in an amount sufficient to cover the costs of potential future environmental harm at the site.

(b) It is unlawful to engage in the practice of backhauling as such term is defined in section two of this article.

§22-15-20. Sewage sludge management.

(a) Within the limits imposed by section eight, article fifteen of this chapter, the division shall develop and implement a comprehensive program for the regulation and management of sewage sludge. The division is authorized to require permits for all facilities and activities which generate, process or dispose of sewage sludge by whatever means, including, but not limited to, land application, composting, mixed waste composting, incineration or any other method of handling sewage sludge within the state.

(b) The director shall promulgate emergency rules and propose legislative rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary for the efficient and orderly regulation of sewage sludge no later than ninety days after the effective date of this article. All rules, whether emergency or not, promulgated pursuant to this section shall assure, at a minimum, the following:

(1) That entities which generate, process, dispose or otherwise manage sewage sludge in the state are required to report to the division the following:

(i) The specific source of the sewage sludge;

(ii) The amount of sewage sludge actually generated, treated, stored, processed, composted, disposed or placed;

(iii) The content of heavy metals, pathogens, toxins or vectors present in the sewage sludge; and

(iv) Each location that the sewage sludge is stored, land applied or otherwise disposed of; the amount so stored, land applied or otherwise disposed of; and the capacity of that location to accept sewage sludge;

(2) That the division engage in reasonable and periodic monitoring of all sewage sludge-related activities and to monitor data supplied by sewage sludge producers, processors or transporters to ensure compliance with state and federal regulations;

(3) That representatives of the division have the ability to enter onto any land application site for the purposes of inspecting and analyzing the effects of sewage sludge application on that site;

(4) That no permit for the processing or disposal of sewage sludge will be issued until there is an accurate finding that it has been adequately tested and shown not to contain heavy metals, pathogens, toxins or vectors in excess of regulatory standards;

(5) That the director may require a surety bond, deposit or similar instrument in an amount sufficient to cover the costs of future environmental remediation from producers and importers of sewage sludge;

(6) That no person or entity be allowed to apply sewage sludge to land in a manner that will result in exceeding the maximum soil concentration for all pollutants, including, but not limited to, arsenic, cadmium, chromium, copper, lead, mercury, molybdenum, nickel, selenium and zinc;

(7) That no person be allowed to land apply so much sewage sludge as to exceed the agronomic rate for that land or a rate of fifteen dry tons per acre per year, whichever is less: Provided, That up to twenty-five dry tons per acre per year may be applied in the reclamation of surface mine land;

(8) That information relating to the disposal, treatment, storage, processing, composting, dumping, placing or land applying of sewage sludge is available to affected communities and other persons who may request the information in conformity with article one, chapter twenty-nine-b of this code;

(9) That all sewage sludge processing facilities contain sufficient design specifications to protect ground, surface and potable waters, air quality, existing and potential land-use planning and public health and safety;

(10) That regulation of composting facilities varies according to types and quantities of materials handled;

(11) That only living or dead plant tissues are used as bulking agents in sewage sludge processing facilities; and

(12) That a fee, to be paid by the producer, processor or transporter be levied and imposed on the land application of sewage sludge, to be collected at a per ton rate, sufficient to cover the costs of the sewage sludge management program. Fees collected pursuant to the terms of this subsection shall be deposited in the special revenue fund designated the "water quality management fund" established under the provisions of section ten, article eleven of this chapter. The fee schedule shall vary according to the volume of materials handled and the contaminant level of the sewage sludge and shall be subject to the provisions of article three, chapter twenty-nine-a of this code.

(c) For those publicly owned treatment works (POTW) which produce sewage sludge and are regulated by the division pursuant to a water pollution control permit, including a West Virginia national pollutant discharge elimination system (WV/NPDES) permit required under article eleven of this chapter, a sewage sludge processing permit shall be a part of the permit and shall include a sewage sludge management plan approved by the director. Upon approval by the director, POTWs may accept sewage sludge from other POTWs on a cost-sharing or nonprofit basis under its NPDES permit without being considered a commercial solid waste facility.

(d) On and after April 10, one thousand nine hundred ninety-three, any facility seeking to land apply, compost, incinerate or recycle sewage sludge shall first apply for and obtain a permit from the division. No such permit may be issued until the rule provided for in subsection (b) of this section is effective.

(e) All sewage sludge placed in, or used in a landfill disposal cell by a solid waste facility shall be subject to the same tipping and other fees levied by this chapter on the disposal of solid waste and shall be included in said facility's total tonnage, subject to the limitations established in this article and the provisions of article four, chapter twenty-two-c of this code: Provided, That no land within a solid waste facility but outside a landfill disposal cell, shall accept the permanent application of so much sewage sludge as to exceed the agronomic rate or a rate of fifteen dry tons per acre per year, whichever is less.

(f) Sewage sludge shall not be used as daily cover by a landfill.

(g) Any solid waste facility currently operating under a permit from the director as a Class A solid waste facility and sewage sludge processing facility may receive, for the purpose of composting, up to a maximum of twelve thousand five hundred tons of sewage sludge per month, as weighed at the time of receipt at the facility. No Class A facility operating a sewage sludge processing facility under this chapter shall, on an annual basis, temporarily or permanently store, retain or stockpile more than one hundred twenty-five thousand cubic yards of sewage sludge or any intermediate or final material or product derived wholly or partially from sewage sludge.

(h) Any solid waste facility currently operating under a permit from the director as a Class B solid waste facility and sewage sludge processing facility may receive, for the purpose of composting, up to a maximum of five thousand tons of sewage sludge per month, as weighed at the time of receipt at the facility. No Class B facility operating a sewage sludge processing facility under this chapter shall, on an annual basis, temporarily or permanently store, retain or stockpile more than fifty thousand cubic yards of sewage sludge or any intermediate or final material or product derived wholly or partially from sewage sludge.

(i) Any POTW currently operating or holding a WV/NPDES permit to operate a sewage sludge processing facility for the purpose of composting sewage sludge may receive, for the purpose of composting, up to a maximum of five thousand tons of sewage sludge per month, as weighed at the time of receipt at the facility. No POTW operating a sewage sludge processing facility under this chapter shall, on an annual basis, temporarily or permanently store, retain or stockpile more than fifty thousand cubic yards of sewage sludge or any intermediate or final material or product derived wholly or partially from sewage sludge.

(j) No person seeking to operate a sewage sludge processing facility, commercial composting facility or noncommercial composting facility may receive, for the purpose of composting, up to a maximum of two thousand tons of sewage sludge per month, as weighed at the time of receipt at the facility. No person operating a sewage processing facility under this chapter shall, on an annual basis, temporarily or permanently store, retain or stockpile more than twenty thousand cubic yards of sewage sludge or any intermediate or final material or product derived wholly or partially from sewage sludge.

(k) No sewage sludge processing facility may be located within a forty mile radius of another sewage sludge processing facility.

(l) Any facility under a consent agreement with the director or chief of the office of water resources as of the effective date of this article, regarding sewage sludge stored, retained or stockpiled at that facility, shall dispose of all accumulated sewage sludge in accordance with the consent agreement. Such sewage sludge is not subject to the limitations on storage, retention and stockpiling set forth above unless the facility violates the terms and conditions of its consent agreement.

(m) No person shall knowingly transport or deliver sewage sludge, or any intermediate or final material or product derived wholly or partially from sewage sludge in violation of this section.

(n) Any solid waste facility which composts sewage sludge shall have an annual output of finished or mature compost removed from the facility balanced to the annual input of sewage sludge relative to the nature of the sewage sludge taken in.

(o) A person or facility that temporarily or permanently, stores, retains or stockpiles sewage sludge or any intermediate or final material or product derived wholly or partially from sewage sludge, shall maintain accurate operational records on site that are sufficiently detailed to clearly and convincingly demonstrate to the director that sewage sludge is being stored consistent with the provisions of this section. The records shall be made available to the director upon request.

(p) The director shall presume that a person or facility which temporarily or permanently, stores, treats, handles, processes, retains or stockpiles sewage sludge or any intermediate or final material or product derived wholly or partially from sewage sludge, contrary to the provisions of this section is subject to all penalties available to the director under this chapter.

(q) All persons operating a sewage sludge processing facility shall provide off-site odor monitoring or testing mechanisms approved by the director. The director shall promulgate emergency rules and propose legislative rules for legislative promulgation, rules specifying the nature and type of odor monitoring or testing which will be approved or how to obtain approval for proposed odor monitoring or testing; the areas where the monitoring or testing should occur; the frequency of monitoring or testing which shall be no less than semiannually or as otherwise ordered by the director and any other conditions necessary to effectuate the purposes of this subsection.

§22-15-21. Waste tire management.

(a) No person, except those persons who have received and maintained a valid permit or license from the state for the operation of a solid waste facility, waste tire monofill, waste tire processing facility, or other such permitted activities, shall accumulate waste tires without obtaining a license or permit from the Division: Provided, That persons who use waste tires for beneficial uses may in the discretion of the Secretary of the Department of Environmental Protection accumulate waste tires without a permit.

(b) No person shall dispose of waste tires in or upon any public or private land, any site or facility other than a site or facility which holds a valid permit issued by the Department for such disposal or usage.

(c) No person shall knowingly transport or knowingly allow waste tires under his or her control to be transported to a site or facility that does not have a valid permit or license to accept waste tires.

(d) No person shall engage in the open burning of waste tires.

(e) Persons who violate this article are subject to all enforcement actions available to the Secretary under the provisions of section fifteen, article fifteen, chapter twenty-two of this code.

(f) Except as otherwise provided in subsection (g) of this section, each retailer is required to accept one tire of comparable size for each new tire sold at retail. The retailer may charge a disposal fee to cover the actual costs of lawful waste tire disposal. No retail tire dealer may deliver any waste tire, or part thereof, to a person not authorized by the State of West Virginia to transport or accept waste tires.

(g) Any person purchasing a new tire from a retailer must provide a used or waste tire for each tire purchased or sign a waiver, provided to the tire retailer by the Department, acknowledging that he or she is retaining the waste tire and that he or she is legally responsible for proper disposal of each tire retained. These forms are to be kept by the retailer for three years. If the tire purchaser returns to the tire retailer with a signed form given to the purchaser by that retailer, the retailer must accept up to the total number of comparable size tires as previously retained by the purchaser: Provided, That persons having winter tires changed or buying new winter tires and keeping usable summer tires for later installation are not required to provide a used or waste tire or sign a waiver.

(h) Each tire retailer shall post in a conspicuous place a written notice, provided by the Department, that bears the following statements:

(1) "State law requires us to accept your (old) waste tires for recycling or proper disposal if you purchase new tires from us."

(2) "State law authorizes us to charge you no more than the actual cost of disposal of your waste tires even if you do not leave your tires with us."

(3) "It is a crime to burn, bury, abandon or throw away waste tires without authorization and or permits from the Department of Environmental Protection."

This notice must be at least eight and one-half inches wide and eleven inches high.

(i) Solid waste facilities shall accept whole waste tires and may charge a reasonable fee for acceptance of waste tires. All waste tires except those disposed of in a landfill shall be excluded from the calculation of monthly tonnage limits and from any solid waste disposal assessment fees imposed by section nineteen, article fifteen-a, chapter twenty-two; section eleven, article fifteen, chapter twenty-two; section four, article sixteen, chapter twenty-two; and section thirty, article four, chapter twenty-two-c of this code.

(j) Solid waste facilities shall accept and dispose of whole tires from state authorized tire remediation projects. All waste tires from state authorized tire remediation projects except those disposed of in a landfill shall be excluded from the calculation of monthly tonnage limits and from any solid waste disposal assessment fees imposed by section nineteen, article fifteen-a, chapter twenty-two; section eleven, article fifteen, chapter twenty-two; section four, article sixteen, chapter twenty-two; and section thirty, article four, chapter twenty-two-c of this code. For state-sponsored tire remediation projects, the state may negotiate with the solid waste facility for rates and charges for the disposal of waste tires regardless of the rates and charges established by the Public Service Commission pursuant to article one, chapter twenty-four of this code: Provided, That the disposal of whole tires in a solid waste facility is allowed only when the Department of Environmental Protection has determined there is no other reasonable alternative available.

(k) The Department shall propose for legislative promulgation emergency and legislative rules to effectuate the purposes of this section.

§22-15-22. Sludge management.

(a) Any sludge or other material determined by the secretary to have beneficial properties similar to sewage sludge may be beneficially used in accordance with the applicable requirements governing sewage sludge, and any other requirements determined to be necessary by the secretary to protect human health and the environment. Persons seeking to beneficially use sludge must meet the requirements of this article and the rules promulgated under this article.

(b) In order to enhance the resource recovery and recycling goals of this act and to encourage the beneficial use of sludge or other materials, the secretary shall propose for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code, emergency and legislative rules to effectuate the purposes of this section. The secretary shall at a minimum include the following in the proposed rules:

(1) A mechanism to determine beneficial use characteristics;

(2) A method to determine pollutant content of the material proposed for beneficial use;

(3) A method to determine that the beneficial properties of the material are derived from the raw material rather than additives;

(4) Buffer zones or other criteria necessary to adequately protect ground and surface water;

(5) Necessary restrictions of pollutant levels in the material;

(6) Analytical methods, loading rates and storage requirements for the material;

(7) Permit requirements; and

(8) Appropriate fees.

(c) These rules do not apply to land-based aquaculture facilities.

§22-15-23. Water treatment plant sludge.

(a) Water treatment plant sludge determined by the secretary to have beneficial properties may be beneficially used in accordance with requirements determined necessary by the secretary to protect human health and the environment. Persons seeking to beneficially use water treatment plant sludge shall meet the requirements of this article and the rules promulgated under this article.

(b) In order to enhance the resource recovery and recycling goals of this article and to encourage the beneficial use of water treatment plant sludge, the secretary shall propose, for promulgation, legislative rules to effectuate the purposes of this section in accordance with the provisions of article three, chapter twenty-nine-a of this code. The secretary shall, at a minimum, include the following in the proposed rules:

(1) A mechanism to determine beneficial use characteristics of water treatment plant sludge;

(2) A method to determine pollutant content of water treatment plant sludge proposed for beneficial use;

(3) A method to determine that the beneficial properties of the water treatment plant sludge are derived from the raw material rather than additives;

(4) Buffer zones or other criteria necessary to adequately protect ground and surface water;

(5) Necessary restrictions of pollutant levels in the water treatment plant sludge;

(6) Analytical methods and storage requirements for water treatment plant sludge;

(7) Permit requirements; and

(8) Appropriate fees.

§22-15A-1. Legislative findings and purpose.

(a) The Legislature finds that litter is a public nuisance and distracts from the beauty of the state and its natural resources. It is therefore necessary to establish and implement a litter control program to coordinate public and private litter control efforts; to establish penalties for littering; to provide for litter pickup programs; to create education programs; and to provide assistance to local solid waste authority litter control efforts.

(b) The Legislature further finds that the improper management of commercial and residential solid waste and the unlawful disposal of such waste create open dumps that adversely impact the state’s natural resources, public water supplies, and the public health, safety, and welfare of the citizens of the state. It is therefore necessary to establish a program to promote pollution prevention and to eliminate and remediate open dumps.

(c) The Legislature further finds that waste tire piles are a direct product of state citizens’ use and enjoyment of state roads and highways, and proper tire waste disposal is a necessary component of maintenance of the transportation system. The accumulation of waste tires has also become a significant environmental and public health hazard to the state, and the location and number of waste tires are directly related to the efficiency of travel, by citizens, visitors, and commerce, along public highways in West Virginia. In particular, the Legislature recognizes that waste tires are widespread in location and in number throughout the state; waste tires physically touch and concern public highways, including, but not limited to, state roads, county roads, park roads, secondary routes, and orphan roads, all of which interferes with the efficiency of public highways; and further that the existence of waste tires along and near public highways is sometimes accompanied by other hazards and, in turn, adversely impacts the proper maintenance and efficiency of public highways for citizens.

(d) The Legislature also recognizes and declares that waste tires are a public nuisance and hazard; that waste tires serve as harborage and breeding places for rodents, mosquitoes, fleas, ticks, and other insects and pests injurious to the public health, safety, and general welfare; that waste tires collected in large piles pose an excessive risk to public health, safety, and welfare from disease or fire; that the environmental, economic, and societal damage resulting from fires in waste tire piles can be avoided by removing the piles; and that tire pile fires cause extensive pollution of the air and surface and groundwater for miles downwind and downstream from the fire.

(e) Therefore, in view of the findings relating to waste tires, the Legislature declares it to be the public policy of the State of West Virginia to eliminate the present danger resulting from discarded or abandoned waste tires and to eliminate the visual pollution resulting from waste tire piles and that in order to provide for the public health, safety, welfare, and quality of life, and to reverse the adverse impacts to the proper maintenance and efficiency of public highways, it is necessary to enact legislation to those ends by providing expeditious means and methods for effecting the disposal of waste tires.

(f) The Legislature further finds that abandoned and dilapidated structures statewide have become a significant hazard and can result in the formation of open dumps or solid waste not disposed of in a proper or lawful manner. In particular, the Legislature recognizes that damage to the environment, natural resources, and the public health, safety, and welfare may result from abandoned and dilapidated structures. Abandoned and dilapidated structures are widespread in location and in number throughout the state; and further, that the existence of abandoned and dilapidated structures along and near public highways is sometimes accompanied by other hazards and, in turn, adversely impacts the proper maintenance and efficiency of public highways for citizens.

(g) In view of the findings relating to abandoned and dilapidated structures, the Legislature declares it to be the public policy of the State of West Virginia to establish a program to eliminate and remediate abandoned and dilapidated structures.

(h) The Legislature finds that many citizens desire a recycling program in order to conserve limited natural resources, reduce litter, recycle valuable materials, extend the useful life of solid waste landfills, reduce the need for new landfills, and create markets for recyclable materials. It is therefore necessary to establish goals for recycling solid waste; to require certain municipalities to implement recycling programs; to authorize counties to adopt comprehensive recycling programs; to encourage source separation of solid waste; to increase the purchase of recycled products by the various agencies and instrumentalities of government; and to educate the public concerning the benefits of recycling.

(i) The Legislature finds that the effectiveness of litter control, open dump, tire cleanup programs and recycling programs have been made less efficient by fragmented implementation of the various programs by different agencies. It is therefore necessary to coordinate all such programs under one program managed by the department to ensure that all current and future litter, open dump, waste tire, and recycling issues are managed and addressed efficiently and effectively.

(j) This article implements the A. James Manchin Rehabilitation Environmental Action Plan, a coordinated effort to address litter, waste, open dump, tire cleanup, and recycling programs.

§22-15A-2. Definitions.

Unless the context clearly indicates a different meaning or defined elsewhere in this chapter, as used in this article:

(1) "Beneficial use" means the use or reuse of whole waste tires or tire derived material which are reused in constructing retaining walls, rebuilding highway shoulders and subbase, building highway crash attenuation barriers and other civil engineering applications, feed hopper or watering troughs for livestock, other agricultural uses approved by the Department of Environmental Protection, playground equipment, boat or truck dock construction, house or building construction, go-cart, motorbike or race track barriers, recapping, alternative daily cover or similar types of beneficial applications: Provided, That waste tires may not be reused as fencing, as erosion control structures, along stream banks or river banks or reused in any manner where human health or the environment, as determined by the Secretary of the Department of Environmental Protection, is put at risk.

(2) "Brand" means the name, symbol, logo, trademark, or other information that identifies a product rather than the components of the product.

(3) "Collected for commercial purposes" means taking solid waste for disposal from any person for remuneration regardless of whether or not the person taking the solid waste is a common carrier by motor vehicle governed by article two, chapter twenty-four-a of this code.

(4) "Computer" means a desktop, personal computer or laptop computer, including the computer monitor. Computer does not include a personal digital assistant device, computer peripheral devices such as a mouse or other similar pointing device, a printer or a detachable keyboard.

(5) "Court" means any circuit, magistrate or municipal court.

(6) "Covered electronic device" means a television, computer or video display device with a screen that is greater than four inches measured diagonally. "Covered electronic device" does not include a video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment.

(7) "Department" means the Department of Environmental Protection.

(8) "Litter" means all waste material, including, but not limited to, any garbage, refuse, trash, disposable package, container, can, bottle, paper, covered electronic devices, ashes, cigarette or cigar butt, carcass of any dead animal or any part thereof or any other offensive or unsightly matter, but not including the wastes of primary processes of mining, logging, sawmilling, farming or manufacturing.

(9) "Litter receptacle" means those containers suitable for the depositing of litter at each respective public area designated by the secretary's rules promulgated pursuant to subsection (e), section three of this article.

(10) "Manufacturer" means a person that is the brand owner of a covered electronic device or television sold or offered for sale in this state by any means, including transactions conducted through retail sales outlets, catalogs or the Internet.

(11) "Person" means a natural person, corporation, firm, partnership, association or society and the plural as well as the singular.

(12) "Public area" means an area outside of a municipality, including public road and highway rights-of-way, parks and recreation areas owned or controlled by this state or any county of this state or an area held open for unrestricted access by the general public.

(13) "Recyclable materials" means those materials that would otherwise become solid waste for disposal in a refuse disposal system and which may be collected, separated or processed and returned to the marketplace in the form of raw materials or products.

(14) "Recycling" means any action or process such as collecting, separating, baling, and/or shipping of recyclable materials for the purpose of reuse or conversion into raw materials or new products.

(15) "Recycling establishment" means an in-state establishment engaged in recycling of, or brokering of, reportable recyclable materials. Recycling establishment does not include any of the following:

(a) A retail establishment that bales cardboard packaging or collects other materials, for off-site shipment;

(b) An end user of reportable recyclable materials such as a paper mill, steel mill, foundry, or die caster that converts the reportable recyclable materials into new products or raw materials for conversion into new products; or

(c) A recycling establishment that sends all reportable recyclable materials to another in-state recycling establishment.

(16) "Reportable recyclable material" means materials which are separated from household and/or commercial waste and delivered to an establishment for recycling including, but not limited to, the following:

(a) Paper and paper products;

(b) Plastics and plastic products;

(c) Glass;

(d) Electronics;

(e) Ferrous metals;

(f) Non-ferrous metals;

(g) Textiles; or

(h) Single stream recyclable materials that include any combination of the materials listed above.

"Reportable recyclable material" does not include any of the following:

(i) Materials that are directed to or received by a person subject to §61-3-49 of this code; or

(j) Materials generated from the shredding or dismantling of motor vehicles or parts from motor vehicles.

(17) "Remediate or remediation" means to remove all litter, solid waste and tires located above grade at a site: Provided, That remediation does not include clean up of hazardous waste.

(18) "Television" means any telecommunication system device that can receive moving pictures and sound broadcast over a distance and includes a television tuner or a video display device peripheral to a computer in which the display contains a television tuner.

(19) "Secretary" means the Secretary of the Department of Environmental Protection.

(20) "Video display device" means an electronic device with an output surface that displays or is capable of displaying moving graphical images or visual representations of image sequences or pictures that show a number of quickly changing images on a screen to create the illusion of motion. Video display device includes a device that is an integral part of the display and cannot easily be removed from the display by the consumer and that produces the moving image on the screen. A "video display device" may use a cathode-ray tube (CRT), liquid crystal display (LCD), gas plasma, digital light processing, other image-projection technology or imaging display technologies.

 (21) "Waste tire" means any continuous solid or pneumatic rubber covering designed to encircle the wheel of a vehicle but which has been discarded, abandoned or is no longer suitable for its original, intended purpose nor suitable for recapping, or other beneficial use because of wear, damage or defect. A tire is no longer considered to be suitable for its original intended purpose when it fails to meet the minimum requirements to pass a West Virginia motor vehicle safety inspection. Used tires located at a commercial recapping facility or tire dealer for the purpose of being reused or recapped are not waste tires.

 (22) "Waste tire monofill or monofill" means an approved solid waste facility where no solid waste except waste tires are placed for the purpose of long term storage for eventual retrieval for marketing purposes.

 (23) "Waste tire processing facility" means a solid waste facility or manufacturer that accepts waste tires generated by sources other than the owner or operator of the facility for processing by such means as cryogenics, pyrolysis, pyroprossing cutting, splitting, shredding, quartering, grinding or otherwise breaking down waste tires for the purposes of disposal, reuse, recycling and/or marketing.

(24) "Waters of the state" means generally, without limitation, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands.

(25) "Yard waste" means grass clippings, weeds, leaves, brush, garden waste, shrub or tree prunings and other living or dead plant tissues, except that materials, which due to inadvertent contamination or mixture with other substances which render the waste unsuitable for composting, are not yard waste: Provided, That the same or similar waste generated by commercial agricultural enterprises is excluded.

§22-15A-3. West Virginia litter control and recycling programs; transfer of programs and employees; additional duties of secretary; grants to counties and municipalities; and rules relating thereto.

(a) After July 1, 2005, the litter control and recycling programs heretofore operated and managed by the Division of Natural Resources shall transfer to the Department of Environmental Protection.

With the transfer of the West Virginia Litter Control and Recycling Programs from the jurisdiction of the Division of Natural Resources to the jurisdiction of the Department of Environmental Protection, all records, assets, and contracts, along with rights and obligations thereunder, obtained or signed on behalf of the Litter Control and Recycling Programs are hereby transferred and assigned to the Department of Environmental Protection.

(b) The Commissioner of the Division of Natural Resources and the Secretary of the Department of Environmental Protection shall determine which employees of the Division of Natural Resources will be transferred to the Department of Environmental Protection. All employees including administrators of the litter control and recycling programs are subject to being transferred to the Department of Environmental Protection. Employees in the classified service who have gained permanent status as of the effective date of this article, enacted during the 2005 regular session of the Legislature, will not be subject to further qualifying examination in their respective classifications by reason of the transfer required by the provisions of this section. Nothing contained in this section may be construed to either abridge the rights of employees within the classified service of the state to the procedures and protections set forth in §29-6-1 et seq. of this code or to preclude the reclassification or reallocation of positions in accordance with procedures set forth in that article. The Division of Personnel shall work with the commission and secretary to efficiently transfer employees from the Division of Natural Resources to the Department of Environmental Protection.

(c) In addition to all other powers, duties, and responsibilities granted and assigned to the Secretary of the Department of Environmental Protection in this chapter and elsewhere by law, the secretary, in the administration of the West Virginia Litter Control Program created by this section, shall:

(1) Coordinate all industry and business organizations seeking to aid in the litter control and recycling effort;

(2) Cooperate with all local governments to accomplish coordination of local litter control and recycling efforts;

(3) Encourage, organize, coordinate, and increase public awareness of and participation in all voluntary litter control and recycling campaigns, including citizen litter watch programs, seeking to focus the attention of the public on the litter control and recycling programs of the state and local governments and of private recycling centers;

(4) Recommend to local governing bodies that they adopt ordinances similar to the provisions of §22-15A-4 of this code;

(5) Investigate the methods and success of techniques of litter control, removal, and disposal utilized in other states, and develop, encourage, organize, and coordinate local litter control programs funded by grants awarded pursuant to subsection (d) of this section utilizing such successful techniques;

(6) Investigate the availability of, and apply for, funds available from any and all private or public sources to be used in the litter control program created by this section;

(7) Attract to the state persons or industries that purchase, process, or use recyclable materials;

(8) Contract for the development, production, and broadcast of radio and television messages promoting the West Virginia Litter Control Program. The messages should increase public awareness of and promote citizen responsibility toward the reduction of litter; and

(9) Encourage, organize, coordinate, and increase public awareness of, and participation in, a volunteer litter reporting program statewide.

(d) All authority to promulgate rules pursuant to §29A-3-1 et seq. of this code establishing criteria for awarding direct or matching grants for the study of available research and development in the fields of litter control, removal, and disposal, methods for the implementation of such research and development, and the development of public educational programs concerning litter control is hereby transferred from the Division of Natural Resources to the Secretary of the Department of Environmental Protection as of the effective date of enactment of this section and article during the 2005 session of the Legislature: Provided, That any rule promulgated by the Division of Natural Resources relating to such grants shall remain in force and effect as though promulgated by the Department of Environmental Protection until the Secretary amends the rules in accordance with the provisions of §29A-3-1 et seq. of this code.

(e) All authority to promulgate rules pursuant to §29A-3-1 et seq. of this code designating public areas where litter receptacles shall be placed and the minimum number of litter receptacles in accordance with §22-15A-4(g) of this code is hereby transferred from the Division of Natural Resources to the Secretary of the Department of Environmental Protection as of the effective date of enactment of this section and article during the 2005 session of the Legislature. Any rule promulgated by the Division of Natural Resources relating to littering receptacles shall remain in effect as if promulgated by the secretary until amended by the secretary.

(f) Commencing on July 1, 2019, the secretary shall expend annually at least 30 percent of the moneys credited to the Litter Control Fund in the previous fiscal year for matching grants to counties and municipalities for the initiation and administration of litter control programs. The secretary shall promulgate rules pursuant to §29A-3-1 et seq. of this code establishing criteria for the awarding of matching grants.

(g) The Secretary of the Department of Environmental Protection in cooperation with the Commissioner of Highways, the Department of Commerce, the West Virginia State Police, the United States Forestry Service, and other local, state, and federal law-enforcement agencies shall be responsible for the administration and enforcement of all laws and rules relating to the maintenance of cleanliness and improvement of appearances on and along highways, roads, streets, alleys, streams, rivers, and any other private or public areas of the state. These other agencies shall make recommendations to the secretary, from time to time, concerning means and methods of accomplishing litter control consistent with the provisions of this chapter. The cooperation shall include, but not be limited to, contracts with the Commissioner of Highways to operate a litter control program.

(h) All other state agencies and local governments shall cooperate with the secretary in effecting the purposes of the litter control program.

§22-15A-4. Unlawful disposal of litter; civil and criminal penalty; Litter Control Fund; evidence; notice violations; litter receptacle placement; penalty; duty to enforce violations.

(a) (1) A person may not place, deposit, dump, throw, or cause to be placed, deposited, dumped, or thrown any litter as defined in §22-15A-2 of this code, in or upon any public or private highway, road, street, or alley; any private property; any public property; or the waters of the state or within 100 feet of the waters of this state, except in a proper litter or other solid waste receptacle.

(2) A person may not place, deposit, dump, throw, or cause to be placed, deposited, dumped, or thrown any litter from a motor vehicle or other conveyance or perform any act which constitutes a violation of the motor vehicle laws contained in §17C-14-14 of this code.

(3) If any litter is placed, deposited, dumped, discharged, thrown, or caused to be placed, deposited, dumped, or thrown from a motor vehicle, boat, airplane, or other conveyance, it is prima facie evidence that the owner or the operator of the motor vehicle, boat, airplane, or other conveyance intended to violate the provisions of this section.

(4) Any person who violates the provisions of this section by placing, depositing, dumping, or throwing or causing to be placed, deposited, dumped, or thrown any litter on his or her private property in an amount not exceeding 50 pounds in weight is not subject to the criminal provisions of this section.

(5) Any person who violates the provisions of this section by placing, depositing, dumping, or throwing or causing to be placed, deposited, dumped, or thrown any litter, not collected for commercial purposes, in an amount not exceeding 100 pounds in weight or 27 cubic feet in size, is guilty of a misdemeanor. Upon conviction, he or she is subject to a fine of not less than $100 nor more than $2,500, or in the discretion of the court, sentenced to perform community service by cleaning up litter from any public highway, road, street, alley, or any other public park or public property, or waters of the state, as designated by the court, for not less than eight nor more than 100 hours, or both. If any person is convicted of the misdemeanor by placing, depositing, dumping, or throwing litter in the waters of the state, that person shall be fined not less than $500 nor more than $3,000, or in the discretion of the court sentenced to perform community service by cleaning up litter from any waters of the state, as designated by the court, for not less than 20 hours nor more than 120 hours, or both.

(6) Any person who violates the provisions of this section by placing, depositing, dumping, or throwing or causing to be placed, deposited, dumped, or thrown any litter, not collected for commercial purposes, in an amount greater than 100 pounds in weight or 27 cubic feet in size, but less than 500 pounds in weight or 216 cubic feet in size is guilty of a misdemeanor. Upon conviction, he or she is subject to a fine of not less than $2,500 nor more than $5,000, or in the discretion of the court, may be sentenced to perform community service by cleaning up litter from any public highway, road, street, alley, or any other public park or public property, or waters of the state, as designated by the court, for not less than 16 hours nor more than 200 hours, or both. If any person is convicted of the misdemeanor by placing, depositing, dumping, or throwing litter in the waters of the state, that person shall be fined not less than $3,000 nor more than $5,500, or in the discretion of the court sentenced to perform community service by cleaning up litter from any waters of the state, as designated by the court, for not less than 20 hours nor more than 220 hours, or both.

(7) Any person who violates the provisions of this section by placing, depositing, dumping, or throwing or causing to be placed, deposited, dumped, or thrown any litter in an amount greater than 500 pounds in weight or 216 cubic feet in size or any amount which had been collected for commercial purposes is guilty of a misdemeanor. Upon conviction, the person shall be fined not less than $2,500 nor more than $25,000 or confinement in jail for not more than one year, or both. If any person is convicted of the misdemeanor by placing, depositing, dumping, or throwing litter in the waters of the state, that person shall be fined not less than $3,000 nor more than $11,000, or confinement in jail for not more than one year, or both. In addition, he or she may be guilty of creating or contributing to an open dump as defined in §22-15-2 of this code and subject to the enforcement provisions of §22-15-15 of this code.

(8) Any person convicted of a second or subsequent violation of this section is subject to double the authorized range of fines and community service for the subsection violated.

(9) The sentence of litter clean up shall be verified by environmental inspectors from the Department of Environmental Protection. Any defendant receiving the sentence of litter clean up shall provide, within a time to be set by the court, written acknowledgment from an environmental inspector that the sentence has been completed and the litter has been disposed of lawfully.

(10) Any person who has been found by the court to have willfully failed to comply with the terms of a litter clean-up sentence imposed by the court pursuant to this section is subject to, at the discretion of the court, double the amount of the original fines and community service penalties originally ordered by the court.

(11) All law-enforcement agencies, officers, and environmental inspectors shall enforce compliance with this section within the limits of each agency’s statutory authority.

(12) A magistrate or municipal court judge may not dismiss an action brought under the provisions of this section without notification to the prosecuting attorney of that county of his or her intention to do so and affording the prosecuting attorney an opportunity to be heard.

(13) No portion of this section restricts an owner, renter, or lessee in the lawful use of his or her own private property or rented or leased property or prohibits the disposal of any industrial and other wastes into waters of this state in a manner consistent with the provisions of §22-11-1 et seq. of this code. But if any owner, renter, or lessee, private or otherwise, knowingly permits any of these materials or substances to be placed, deposited, dumped, or thrown in a location that high water or normal drainage conditions will cause these materials or substances to wash into any waters of the state, it is prima facie evidence that the owner, renter, or lessee intended to violate the provisions of this section: Provided, That if a landowner, renter, or lessee, private or otherwise, reports any placing, depositing, dumping, or throwing of these substances or materials upon his or her property to the prosecuting attorney, county commission, the Division of Natural Resources, or the Department of Environmental Protection, the landowner, renter, or lessee will be presumed to not have knowingly permitted the placing, depositing, dumping, or throwing of the materials or substances.

(b) Any indication of ownership found in litter is prima facie evidence that the person identified violated the provisions of this section: Provided, That no inference may be drawn solely from the presence of any logo, trademark, trade name, or other similar mass reproduced things of identifying character appearing on the found litter.

(c) (1) Every person who is convicted of or pleads guilty to disposing of litter in violation of subsection (a) of this section shall pay a civil penalty of not less than $200 nor more than $2,000 as costs for clean up, investigation, and prosecution of the case, in addition to any other court costs that the court is otherwise required by law to impose upon a convicted person.

(2) The clerk of the circuit court, magistrate court, or municipal court in which these additional costs are imposed shall, on or before the last day of each month, transmit 50 percent of a civil penalty received pursuant to this section to the State Treasurer for deposit in the State Treasury to the credit of a special revenue fund known as the Litter Control Fund which was transferred to the Department of Environmental Protection. Expenditures for purposes set forth in this section are not authorized from collections but are to be made only in accordance with appropriation and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions set forth in §5A-2-1 et seq. of this code. Amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this article may be transferred to other accounts or funds and designated for other purposes by appropriation of the Legislature.

(d) The remaining 50 percent of each civil penalty collected pursuant to this section shall be transmitted to the county or regional solid waste authority in the county where the litter violation occurred. Moneys shall be expended by the county or regional solid waste authority for the purpose of litter prevention, clean up, and enforcement. The county commission shall cooperate with the county or regional solid waste authority serving the respective county to develop a coordinated litter control program pursuant to §22C-4-8 of this code.

(e) The Commissioner of the Division of Motor Vehicles, upon registering a motor vehicle or issuing an operator’s or chauffeur’s license, shall issue to the owner or licensee, as the case may be, a summary of this section and §17C-14-14 of this code.

(f) The Commissioner of the Division of Highways shall cause appropriate signs to be placed at the state boundary on each primary and secondary road, and at other locations throughout the state, informing those entering the state of the maximum penalty provided for disposing of litter in violation of subsection (a) of this section.

(g) Any state agency or political subdivision that owns, operates, or otherwise controls any public area designated by the secretary by rule promulgated pursuant to §22-15A-3(a)(8) of this code shall procure and place litter receptacles at its own expense upon its premises and shall remove and dispose of litter collected in the litter receptacles. After receiving two written warnings from any law-enforcement officer or officers to comply with this subsection or the rules of the secretary, any state agency or political subdivision that fails to place and maintain the litter receptacles upon its premises in violation of this subsection or the rules of the secretary shall be fined $30 per day of the violation.

§22-15A-5. Litter pickup and removal; education; government recycling responsibilities; monitoring and evaluation; study commission; repeal; report to Legislature.

(a) Litter pickup and removal. --

(1) Each county commission and the Regional Jail Authority may establish a jail or prison inmate program including a regular litter pickup work regimen under proper supervision pursuant to section four, article fifteen, chapter seventeen of this code. Funding for these programs shall be from the Litter Control Fund. Funding requirements may include salaries for additional personnel needed for the program. The program may include the cooperative help of the Division of Highways or any other voluntary state, local, private, civic or public agency for personnel, equipment or materials in establishing a county or regionwide, continual program of inmate litter pickup. Upon final approval of the projected cost of the program for a given fiscal year, the secretary shall disburse the approved amount to the county or Regional Jail Authority. The funds will be used by the Authority to reimburse the county commission or Regional Jail Authority for its expenses related to the program and to pay other costs related to the use of inmates for litter pickup. Nothing contained herein shall preclude a county or counties from expending whatever additional funds its commission or commissions may deem appropriate from any other revenue source in furtherance of said program.

(2) All persons involved with litter pickup may separate identifiable recyclable materials from other litter collected. The funds resulting from the sale of those recyclable materials shall be returned to the Litter Control Fund.

(3) The county or regional solid waste authority may also contract with local governments, civic organizations or chief correctional officers in any county to implement litter pickup and removal pursuant to this act when the state offender workforce is not available. In such cases, the contract provisions shall require that identifiable recyclable materials shall be separated from other litter collected, with resulting funds returned to the Litter Control Fund. Priority shall be given to those contracts that maximize the use of community service hours by inmates and youth employment programs.

(b) Education. --

(1) The Department of Education in cooperation with the Department of Environmental Protection shall distribute educational materials to the schools based on the goals of litter clean up and proper solid waste disposal, the rationale for the goals and how primary and secondary school students can contribute to the achievement of the goals. The Department of Education shall further incorporate this information into the curriculum of the public school system as appropriate.

(2) The Division of Highways and local governments shall conduct public awareness programs to notify the public of the provisions of this law and how they can participate, to inform them as to the rationale behind the provisions of this law, to advise them of other avenues for achievement of the noted goals and to encourage their participation.

(3) The Department of Environmental Protection and the Solid Waste Management Board shall provide technical assistance to local governments in the implementation of this law.

(c) Government recycling responsibilities. --

(1) All state agencies and regional planning councils may establish and implement aluminum container, glass and paper recycling programs at their public facilities. To the extent practicable, programs for other metals, plastics, covered electronic devices, rubber and other recyclable materials may be established and implemented. The moneys collected from the sale of such materials shall be deposited and accounted for in the Litter Control Fund pursuant to the authority of section four of this article.

(2) To further promote recycling and reduction of the waste stream, county and municipal governments shall consider the establishment of recycling programs as provided in this section in the operation of their facilities and shall evaluate the cost effectiveness of:

(A) Procedures that separate identifiable recyclable materials from solid waste collected; and

(B) Programs that provide for:

(i) The establishment of a collection place for recyclables at all landfills and other interim solid waste collection sites and arrangements for the material collected to be recycled;

(ii) Public notification of such places and encouragement to participate;

(iii) The use of rate differentials at landfills to facilitate public participation in on-site recycling programs.

(3) In preparing the recycling plan as required under this subsection, the county may address methods for the separate collection and recycling of covered electronic devices, including efforts by the county with manufacturers, recyclers, retailers or other local governments for the collection and recycling of covered electronic devices.

(d) Each affected agency and local government shall monitor and evaluate the programs implemented pursuant to this law.

(e) The secretary shall submit a report to the Speaker of the House and the President of the Senate not later than March 1, 2006, and every five years thereafter regarding the effectiveness of the programs authorized by this law.

§22-15A-6. Assistance to solid waste authorities.

The Secretary may expend funds from the Litter Control Fund established pursuant to section four of this article to assist county and regional solid waste authorities in the formulation of their comprehensive litter and solid waste control plans pursuant to section eight, article four, chapter twenty-two-c of this code and in the construction and maintenance of approved commercial solid waste facilities authorities which would in the opinion of the Secretary be unable to construct or maintain an approved commercial solid waste facility without grant funds.

§22-15A-7. Pollution prevention and open dumps.

(a) The Secretary shall establish the Pollution Prevention and Open Dump (PPOD) Program to encourage the proper disposal of commercial and residential solid waste and to undertake all reclamation, clean up and remedial actions necessary to minimize or mitigate damage to the environment, natural resources, public water supplies, water resources and the public health, safety and welfare which may result from open dumps or solid waste not disposed of in a proper or lawful manner. The program shall seek to eliminate open dumps, which often include waste tires and to recycle as many items as possible from these reclamation efforts. This program shall be funded through the Solid Waste Reclamation and Environmental Response Fund established in section eleven, article fifteen of this chapter.

(b) Authorized representatives of the department have the right, upon presentation of proper identification, to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of an open dump, to determine the feasibility of the reclamation or prevention of such adverse effects and to conduct reclamation activities provided herein. Such entry is an exercise of the police power of the state and for the protection of public health, safety and general welfare and is not an act of condemnation of property or trespass thereon. Nothing contained in this section eliminates any obligation to follow any process that may be required by law.

§22-15A-8. Waste tires prohibited in certain places; penalty.

The Waste Tire Remediation Program heretofore under the jurisdiction of the Division of Highways is transferred to the Department of Environmental Protection effective upon enactment of this article by the Legislature during the regular session of two thousand five.

(a) No person shall, within this state, place, deposit or abandon any waste tire or part thereof upon the right-of-way of any public highway or upon any other public property nor deposit or abandon any waste tire or part thereof upon any private property unless it is at a licensed monofill, solid waste facility or at any other business authorized by the Department of Environmental Protection to accept, process, manufacture or remanufacture waste tires: Provided, That the Secretary may temporarily accumulate as many waste tires as he or she deems necessary at any location or locations necessary to effectuate the purposes of this article.

(b) No person, except those persons who have received and maintain a valid permit or license from the state for the operation of a solid waste facility, waste tire monofill, waste tire processing facility, or other such permitted activities, shall accumulate more than one hundred waste tires for beneficial use without obtaining a license or permit from the Department of Environmental Protection.

(c) Any person who violates any provision of this section shall be guilty of creating an open dump and subject to enforcement actions or prosecution under the provisions of article fifteen of this chapter.

§22-15A-9. Creation of the A. James Manchin Fund; proceeds from sale of waste tires; fee on issuance of certificate of title.

(a) There is continued in the state Treasury a special revenue fund known as the A. James Manchin Fund. All moneys appropriated, deposited or accrued in this Fund shall be used exclusively for remediation of waste tire piles as required by this article, for the tire disposal program established under section ten of this article or for the purposes of subsection (h), section ten of this article or for the purposes of subsection (c), section eleven of this article. The Commissioner of the Division of Highways shall work with and may use moneys in the fund to contract with the Secretary of the Department of Environmental Protection to accomplish the remediation of waste tire piles. The Fund consists of the proceeds from the sale of waste tires; fees collected by the Division of Motor Vehicles as provided in section sixteen, article ten, chapter seventeen-a of this code; any federal, state or private grants; legislative appropriations; loans; and any other funding source available for waste tire remediation. Any unprogrammed balance remaining in the Fund at the end of any state fiscal year shall be transferred to the state Road Fund.

(b) No further collections or deposits shall be made after the Commissioner of the Division of Highways certifies to the Governor and the Legislature that the remediation of all waste tire piles that were determined by the Commissioner to exist on July 1, 2001, has been completed and that all infrastructure bonds issued by the Water Development Authority pursuant to section seventeen-a, article fifteen-a, chapter thirty-one of this code have been paid in full or legally defeased.

(c) If infrastructure bonds are not issued by the Water Development Authority pursuant to section seventeen-a, article fifteen-a, chapter thirty-one of this code to finance infrastructure projects relating to waste tire processing facilities located in this state on or before December 31, 2006, all further collections and deposits to the A. James Manchin Fund which are not programmed for remediation or disposal shall be transferred to the state road fund at the end of each fiscal year.

§22-15A-10. Department to administer funds for waste tire remediation; rules authorized; duties of secretary.

(a) The department shall administer all funds made available to the department by legislative appropriation or by funds made available by the Division of Highways, as well as federal, state or private grants for remediation of waste tire piles and for the proper disposal of waste tires removed from waste tire piles.

(b) All authority to promulgate legislative rules necessary to implement the provisions of this article is transferred from the Division of Highways to the Secretary of the Department of Environmental Protection as of the effective date of enactment of this section and article during the 2005 of the Legislature. Any legislative rules promulgated by the Commissioner of the Division of Highways in furtherance of the waste tire remediation program established in former article twenty-four, chapter seventeen of this code shall remain in force and effect as if promulgated by the secretary until they are amended in accordance with the provisions of article three, chapter twenty-nine-a of this code.

(c) The secretary also has the following powers:

(1) To apply and carry out the provisions of this article and the rules promulgated under this article.

(2) To investigate, from time to time, the operation and effect of this article and of the rules promulgated under this article and to report his or her findings and recommendations to the Legislature and the Governor.

(d) The secretary shall determine the location, approximate size and potential risk to the public of all waste tire piles in the state and establish, in descending order, a waste tire remediation list.

(e) The secretary may contract with the Department of Health or the Division of Corrections, or both, to remediate or assist in remediation of waste tire piles throughout the state. Use of available Division of Corrections work programs shall be given priority status in the contract process so long as such programs prove a cost-effective method of remediating waste tire piles.

(f) Waste tire remediation shall be stopped upon the discovery of any potentially hazardous material at a remediation site. The department shall respond to the discovery in accordance with the provisions of article nineteen of this chapter.

(g) The secretary may establish a tire disposal program within the department to provide for a cost effective and efficient method to accept passenger car and light truck waste tires at locations designated by the department that have sufficient space for temporary storage of waste tires and personnel to accept and handle waste tires. The secretary may pay a fee for each tire an individual West Virginia resident or West Virginia business brings to the department. The secretary may establish a limit on the number of tires an individual or business may be paid for during any calendar month. The secretary may in his or her discretion authorize commercial businesses to participate in the collection program: Provided, That no person or business who has a waste tire pile subject to remediation under this article may participate in this program.

(h) The Commissioner of the Division of Highways may pledge not more than two and one-half million dollars annually of the moneys appropriated, deposited or accrued in the A. James Manchin Fund created by section nine of this article to the payment of debt service, including the funding of reasonable reserves, on bonds issued by the Water Development Authority pursuant to section seventeen-a, article fifteen-a, chapter thirty-one of this code to finance infrastructure projects relating to waste tire processing facilities located in this state: Provided, That a waste tire processing facility shall be determined by the Solid Waste Management Board, established pursuant to the provisions of article three, chapter twenty-two-c of this code, to meet all applicable federal and state environmental laws and rules and to aid the state in efforts to promote and encourage recycling and use of constituent component parts of waste tires in an environmentally sound manner: Provided, however, That the waste tire processing facility shall have a capital cost of not less than $300 million and the council for community and economic development shall determine that the waste tire processing facility is a viable economic development project of benefit to the state's economy.

§22-15A-11. Disposal of waste tires.

(a) The department may sell waste tires collected during remediation of waste tire piles at public auction or to a waste tire monofill, waste tire processing facility or business authorized by the Department of Environmental Protection to accept, store, use or process waste tires.

(b) If there is no market in West Virginia for the sale of waste tires the department may sell them at any available market.

(c) If there is no market for the sale of waste tires the department may dispose of them in any lawful manner.

§22-15A-12. Remediation; liability for remediation and court costs.

(a) Any person who has, prior or subsequent to the effective date of this act, illegally disposed of waste tires or has waste tires illegally disposed on his or her property shall be liable for:

(1) All costs of removal or remedial action incurred by the department;

(2) Any other necessary costs of remediation, including properly disposing of waste tires and damage to adjacent property owners; and

(3) All costs incurred in bringing civil actions under this article.

(b) The department shall notify any person who owns real property or rights to property where a waste tire pile is located that remediation of the waste tire pile is necessary. The department shall make and enter an order directing such person or persons to remove and properly dispose of the waste tires. The department shall set a time limit for completion of the remediation. The order shall be served by registered or certified mail, return receipt requested, or by a county sheriff or deputy sheriff.

(c) If the remediation is not completed within the time limit or the person cannot be located or the person notifies the department that he or she is unable to comply with the order, the department may expend funds, as provided herein, to complete the remediation. Any amounts so expended shall be promptly repaid by the person or persons responsible for the waste tire pile. Any person owing remediation costs or damages shall be liable at law until such time as all costs or damages are fully paid.

(d) Authorized representatives of the department have the right, upon presentation of proper identification, to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of a waste tire pile, to determine the feasibility of the remediation or prevention of such adverse effects and to conduct remediation activities provided herein. Such entry is an exercise of the police power of the state and for the protection of public health, safety and general welfare and is not an act of condemnation of property or trespass thereon. Nothing contained in this section eliminates any obligation to follow any process that may be required by law.

(e) There is hereby created a statutory lien upon all real property and rights to the property from which a waste tire pile was remediated for all reclamation costs and damages incurred by the department. The lien created by this section shall arise at the later of the following:

(1) The time costs are first incurred by the department; or

(2) The time the person is provided, by certified or registered mail or personal service, written notice as required by this section.

The lien shall continue until the liability for the costs or judgment against the property is satisfied.

(f) Any person, who is a bona fide purchaser of real property prior to July 1, 2001, who did not cause, permit or profit from the illegal disposal of waste tires on the property is only liable for the costs of remediation to the extent that the fair market value of the property, when remediation is completed, exceeds the fair market value of the property that existed on July 1, 2001. The department shall have a cause of action against any previous owner who caused, permitted, contributed or profited from the illegal disposal of waste tires on the property for the difference in the amount recovered from the purchaser and the cost of remediation.

(g) Liens created by this section shall be duly recorded in the office of the clerk of the county commission in the county where the real property is located and be liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the amount thereof upon the real property served. The department shall have the power and authority to enforce such liens in a civil action to recover the money due for remediation costs and damages plus court fees and costs and reasonable attorney's fees.

(h) The department may foreclose upon the premises by bringing a civil action, in the circuit court of the county where the property is located, for foreclosure and an order to sell the property to satisfy the lien.

(i) Any proceeds from any sale of property obtained as a result of execution of a lien or judgment under this section for remediation costs, excluding costs of obtaining judgment and perfecting the lien, shall be deposited into the A. James Manchin Fund of the state Treasury.

(j) The provisions of this section do not apply and no lien may attach to the right-of-way, easement or other property interest of a utility, whether electric, gas, water, sewer, telephone, television cable or other public service, unless the utility contributed to the illegal tire pile.

(k) Upon determining the existence of a waste tire pile, the department shall file a notice of the location of the waste tire pile in the office of the county clerk in the county where property containing a waste tire pile is situate. The department shall immediately file the notice for all property known to have waste tire piles as of the day the Legislature enacted the amendment to this section during the 2005 legislative session. The notice shall contain the property owner's name, a location and description of the property and the waste tire pile and the potential liability for remediation. The county clerk shall record the notice in the same manner as a lien and index the notice by the name of the property owner.

§22-15A-13. Injunctive relief; additional remedy.

In addition to all other remedies provided in this article, the Attorney General of this state, the Department, the prosecuting attorney of any county where any violation of any provision of this article occurs, or any citizen, resident or taxpayer of the county where any violation of any provision of this article occurs, may apply to the circuit court, or the judge thereof in vacation, of the county where the alleged violation occurred, for an injunction to restrain, prevent or abate the maintenance and storage of waste tires in violation of any provision of this article, or the violation of any other provision of this article. In seeking an injunction, it is not necessary for the Secretary or any state agency seeking an injunction under this section to post bond.

§22-15A-14. Authority of Commissioner of Bureau for Public Health.

Although the secretary is primarily responsible for remediation of waste tire piles under the provisions of this article, the Commissioner of the Bureau for Public Health may enforce the public health laws in any instance where the Commissioner of the Bureau for Public Health determines there is an imminent and substantial endangerment to the public health.

§22-15A-15.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§22-15A-16. Recycling goals.

It is the goal of this State to establish a base recycling rate which shall be evaluated every five years to aid in implementation of recycling initiatives aimed at increasing this rate. In order to evaluate the State's recycling rate, the Department shall create and implement a process by which recycling establishments shall report, at a minimum, to the State the following information:

(a) The recycling establishment's name, physical location, postal mailing address, e-mail address, telephone number, contact person, and amount and kind of reportable recyclable material handled at the recycling establishment; and

(b) The amount of each category of reportable recyclable material received at the recycling establishment and the amount of recyclable material shipped from the recycling establishment.

(c) A recycling establishment shall report the previous calendar year's data to the Department no later than March 1, 2026, and each year thereafter.

(d) The secretary may propose legislative rules pursuant to § 29A-3-1 et seq. of this code.

§22-15A-17. Recycling plans.

(a) Each county or regional solid waste authority, as part of the comprehensive litter and solid waste control plan required pursuant to the provisions of section eight, article four, chapter twenty-two-c of this code, shall prepare and adopt a comprehensive recycling plan to assist in the implementation of the recycling goals in section sixteen of this article.

(b) Each recycling plan required by this section shall include, but not be limited to:

(1) Designation of the recyclable materials that can be most effectively source separated in the region or county, which shall include at least three recyclable materials; and

(2) Designation of potential strategies for the collection, marketing and disposition of designated source separated recyclable materials in each region or county.

§22-15A-18. Establishment of county recycling programs for solid waste; petition for referendum; ballot contents; election procedure; effect of such election.

(a) On or before October 18, 1992, each municipality described in subsection (b) of this section shall submit a proposal to the Solid Waste Management Board, consistent with the provisions of this section, describing the establishment and implementation of the mandatory recycling program. The Solid Waste Management Board shall review the submitted plans for consistency with the criteria provided in this section, the county or regional solid waste management plan, and the statewide management plan. The Solid Waste Management Board may make suggested changes to the plan and shall provide technical assistance to the municipalities in the development of the plans.

(b) On or before October 18, 1993, each municipality with a population of 10,000 or more people, as determined by the most recent decennial census by the Bureau of the Census of the United States Department of Commerce, shall establish and commence implementation of a source separation and curbside collection program for recyclable materials. Implementation shall be phased in by July 1, 1995. Such program shall include, at a minimum, the following:

(1) An ordinance adopted by the governing body of the municipality requiring that each person, partnership, corporation, or other entity in the municipality shall separate at least three recyclable materials, as deemed appropriate by the municipality, from other solid waste: Provided, That the list of recyclables to be separated may be adjusted according to whether the generator is residential, commercial or other type of establishment.

(2) A scheduled day, at least one per month, during which separated materials are to be placed at the curbside, or similar location, for collection.

(3) A system that collects recyclable materials from the curbside, or similar location, at least once per month: Provided, That to encourage full participation, the program shall, to the maximum extent possible, provide for the collection of recyclables at the same rate of frequency, and simultaneous with, the regular collection of solid waste.

(4) Provisions to ensure compliance with the ordinance, including incentives and penalties.

(5) A comprehensive public information and education program covering the importance and benefits of recycling, as well as the specific features and requirements of the recycling program. As part of the education program, each municipality shall, at a minimum, notify all persons occupying residential, commercial, institutional, or other premises within its boundaries of the requirements of the program, including how the system will operate, the dates of collection, the responsibilities of persons within the municipality and incentives and penalties.

(6) Consultation with the county or regional solid waste authority in which the municipality is located to avoid duplication, ensure coordination of solid waste programs, and maximize the market for recyclables.

(c) Notwithstanding the provisions of subsection (b) of this section, a comprehensive recycling program for solid waste may be established in any county of this state by action of a county commission in accordance with the provisions of this section. Such program shall require:

(1) That, prior to collection at its source, all solid waste shall be segregated into separate identifiable recyclable materials by each person, partnership, corporation, and governmental agency subscribing to a solid waste collection service in the county or transporting solid waste to a commercial solid waste facility in the county;

(2) Each person engaged in the commercial collection, transportation, processing, or disposal of solid waste within the county shall accept only solid waste from which recyclable materials in accordance with the county’s comprehensive recycling program have been segregated; and

(3) That the provisions of the recycling plan prepared pursuant to §22-15A-17 of this code shall, to the extent practicable, be incorporated in the county’s comprehensive recycling program.

(d) For the purposes of this article, recyclable materials shall include, but not be limited to, steel and bimetallic cans, aluminum, glass, paper, and such other solid waste materials as may be specified by either the municipality or county commission with the advice of the county or regional solid waste authority.

(e) A comprehensive recycling program for solid waste may be established in any county of this state by: (1) A petition filed with the county commission bearing the signatures of registered voters of the county equal to not less than five percent of the number of votes cast within the county for Governor at the preceding gubernatorial election; and (2) approval by a majority of the voters in a subsequent referendum on the issue. A referendum to determine whether it is the will of the voters of a county that a comprehensive recycling program for solid waste be established in the county may be held at any regular primary or general election. Any election at which the question of establishing a policy of comprehensive recycling for solid waste is voted upon shall be held at the voting precincts established for holding primary or general elections. All of the provisions of the general election laws, when not in conflict with the provisions of this article, shall apply to voting and elections hereunder, insofar as practicable. The Secretary of State shall prescribe the form of the petition which shall include the printed name, address, and date of birth of each person whose signature appears on the petition. Upon verification of the required number of signatures on the petition, the county commission shall, not less than 70 days before the election, order that the issue be placed on the ballot and referendum held at the next primary or general election to determine whether it is the will of the voters of the county that a policy of comprehensive recycling of solid waste be established in the county: Provided, That the petition bearing the necessary signatures has been filed with the county commission at least 100 days prior to the election.

The ballot, or the ballot labels where voting machines are used, shall have printed thereon substantially the following:

“Shall the county commission be required to establish a comprehensive recycling program for solid waste in __________ County, West Virginia?

For Recycling

Against Recycling

(Place a cross mark in the square opposite your choice.)”

If a majority of legal votes cast upon the question be for the establishment of a policy of comprehensive recycling of solid waste, the county commission shall, after the certification of the results of the referendum, thereafter adopt an ordinance, within 180 days of certification, establishing a comprehensive recycling program for solid waste in the county: Provided, That such program shall be implemented and operational no later than 12 months following certification. If a majority of the legal votes cast upon the question be against the establishment of a policy of comprehensive recycling of solid waste, the policy shall not take effect, but the question may again be submitted to a vote at any subsequent election in the manner herein provided.

(f) A comprehensive recycling program for solid waste established by petition and referendum may be rescinded only pursuant to the procedures set out herein to establish the program.

To rescind the program, the ballot, or the ballot labels where voting machines are used, shall have printed thereon substantially the following:

“Shall the county commission be required to terminate the comprehensive recycling program for solid waste in ___________ County, West Virginia?

Continue Recycling

End Recycling

(Place a cross mark in the square opposite your choice.)”

(g) If a majority of legal votes cast upon the question be for the termination of a policy of comprehensive recycling of solid waste previously established in the county, the county commission shall, after the certification of the results of the referendum, thereafter rescind by ordinance the comprehensive recycling program for solid waste in the county within 90 days of certification. If a majority of the legal votes cast upon the question be for the continuation of the policy of comprehensive recycling of solid waste, the ordinance shall not be rescinded, but the question may again be submitted to a vote at any subsequent election in the manner herein provided.

(h) In the case of any municipality having a population greater than 30,000 persons, as indicated by the most recent decennial census conducted by the United States, the governing body of such municipality may by ordinance establish a materials recovery facility in lieu of or in addition to the mandatory recycling program required under the provisions of this section: Provided, That a materials recovery facility shall be subject to approval by both the Public Service Commission and the Solid Waste Management Board upon a finding by both the Public Service Commission and the Solid Waste Management Board that the establishment of a materials recovery facility will not hinder, and will be consistent with, the purposes of this article.

§22-15A-19. Recycling assessment fee; regulated motor carriers; dedication of proceeds; criminal penalties.

(a) Imposition. — A recycling assessment fee is hereby levied and imposed upon the disposal of solid waste at all solid waste disposal facilities in this state, to be collected at the rate of $2 per ton or part of a ton of solid waste. The fee imposed by this section is in addition to all other fees levied by law.

(b) Collection, return, payment, and records. — The person disposing of solid waste at the solid waste disposal facility shall pay the fee imposed by this section, whether or not that person owns the solid waste, and the fee shall be collected by the operator of the solid waste facility who shall remit it to the Tax Commissioner:

(1) The fee imposed by this section accrues at the time the solid waste is delivered to the solid waste disposal facility;

(2) The operator shall remit the fee imposed by this section to the Tax Commissioner on or before the 15th day of the month next succeeding the month in which the fee accrued. Upon remittance of the fee, the operator shall file returns on forms and in the manner as prescribed by the Tax Commissioner;

(3) The operator shall account to the state for all fees collected under this section and shall hold them in trust for the state until they are remitted to the Tax Commissioner;

(4) If any operator fails to collect the fee imposed by this section, he or she is personally liable for the amount that he or she failed to collect, plus applicable additions to tax, penalties and interest imposed by §11-10-1 et seq. of this code;

(5) Whenever any operator fails to collect, truthfully account for, remit the fee or file returns with the fee as required in this section, the Tax Commissioner may serve written notice requiring the operator to collect the fees which become collectible after service of the notice, to deposit the fees in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner, and to keep the amount of the fees in the account until remitted to the Tax Commissioner. The notice remains in effect until a notice of cancellation is served on the operator or owner by the Tax Commissioner;

(6) Whenever the owner of a solid waste disposal facility leases the solid waste facility to an operator, the operator is primarily liable for collection and remittance of the fee imposed by this section and the owner is secondarily liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations under this section, the owner and the operator of the solid waste facility are jointly and severally responsible and liable for compliance with the provisions of this section;

(7) If the operator or owner responsible for collecting the fee imposed by this section is an association or corporation, the officers of the association or corporation are liable, jointly and severally, for any default on the part of the association or corporation, and payment of the fee and any additions to tax, penalties and interest imposed by §11-10-1 et seq. of this code may be enforced against them and against the association or corporation which they represent; and

(8) Each person disposing of solid waste at a solid waste disposal facility and each person required to collect the fee imposed by this section shall keep complete and accurate records in the form required by the Tax Commissioner in accordance with the rules of the Tax Commissioner.

(c) Regulated motor carriers. — The fee imposed by this section is a necessary and reasonable cost for motor carriers of solid waste subject to the jurisdiction of the Public Service Commission under §24A-1-1 et seq. of this code. Notwithstanding any provision of law to the contrary, upon the filing of a petition by an affected motor carrier, the Public Service Commission shall, within 14 days, reflect the cost of the fee in the motor carrier’s rates for solid waste removal service. In calculating the amount of the fee to the motor carrier, the commission shall use the national average of pounds of waste generated per person per day as determined by the United States Environmental Protection Agency.

(d) Definition. — For purposes of this section, “solid waste disposal facility” means any approved solid waste facility or open dump in this state and includes a transfer station when the solid waste collected at the transfer station is not finally disposed of at a solid waste facility within this state that collects the fee imposed by this section.

Nothing in this section authorizes in any way the creation or operation of or contribution to an open dump.

(e) Exemptions. — The following transactions are exempt from the fee imposed by this section:

(1) Disposal of solid waste at a solid waste facility: (A) By the person who owns, operates, or leases the solid waste disposal facility if it is used exclusively to dispose of waste originally produced by that person in his or her regular business or personal activities; (B) by persons utilizing the facility on a cost-sharing or nonprofit basis; or (C) by a mixed waste processing and resource recovery facility as those facilities are defined in code or rule and which processes a minimum of 70 percent of the material brought to the facility on any given day on a 30-day aggregate basis;

(2) Reuse or recycling of any solid waste; and

(3) Disposal of residential solid waste by an individual not in the business of hauling or disposing of solid waste on the days and times designated by the secretary by rule as exempt from the fee imposed pursuant to §22-15-11 of this code.

(f) Procedure and administration. — Notwithstanding the provisions of §11-10-3 of this code, each and every provision of the West Virginia Tax Procedure and Administration Act set forth in §11-10-1 et seq. of this code applies to the fee imposed by this section with like effect as if the act were applicable only to the fee imposed by this section and were set forth in extenso in this section.

(g) Criminal penalties. — Notwithstanding §11-9-2 and §11-9-3 through §11-9-17, inclusive, of this code apply to the fee imposed by this section with like effect as if the sections were the only fee imposed by this section and were set forth in extenso in this section.

(h) Dedication of proceeds. — The proceeds of the fee collected pursuant to this section shall be deposited by the Tax Commissioner, at least monthly, in a special revenue account designated as the Recycling Assistance Fund which is hereby continued and transferred to the Department of Environmental Protection. The secretary shall allocate the proceeds of the fund as follows:

(1) Fifty percent of the total proceeds shall be provided in grants to assist municipalities, counties, and other interested parties in the planning and implementation of recycling programs, public education programs and recycling market procurement efforts, established pursuant to this article. The secretary shall promulgate rules, in accordance with. §29A-3-1 et seq. of this code, containing application procedures, guidelines for eligibility, reporting requirements, and other matters considered appropriate: Provided, That persons responsible for collecting, hauling, or disposing of solid waste who do not participate in the collection and payment of the solid waste assessment fee imposed by this section in addition to all other fees and taxes levied by law for solid waste generated in this state which is destined for disposal, are not eligible to receive grants under the provisions of this article;

(2) Twelve and one-half percent of the total proceeds shall be expended for personal services and benefit expenses of full-time salaried natural resources police officers;

(3) Twelve and one-half percent of the total proceeds shall be directly allocated to the solid waste planning fund;

(4) Twelve and one-half percent of the total proceeds shall be transferred to the Solid Waste Reclamation and Environmental Response Fund, established pursuant to §22-15-11 of this code, to be expended by the Department of Environmental Protection to assist in the funding of the pollution prevention and open dumps program which encourages recycling, reuse, waste reduction, and clean-up activities; and

(5) Twelve and one-half percent of the total proceeds shall be deposited in the Hazardous Waste Emergency Response Fund established in §22-19-1 et seq. of this code.

§22-15A-20. Establishment of state recycling program for solid waste.

(a) In the absence of either a municipal or a comprehensive county recycling plan pursuant to section eighteen of this article, all agencies and instrumentalities of the state, all primary and secondary schools, where practicable, and private colleges and universities shall implement programs to recycle solid waste. To carry out the purposes of this section, any affected party may be eligible to receive grants pursuant to subdivision (1), subsection (h), section nineteen of this article. Such programs shall include, but not be limited to, the following:

(1) Source separation of at least two recyclable materials; and

(2) In the absence of either a municipal program or a comprehensive county recycling plan pursuant to section eighteen of this article, collection and transportation of source separated recycled materials to an appropriate location.

(b) For purposes of this section, the Department shall be designated the lead agency to ensure proper compliance and coordination of any such recycling program.

§22-15A-21. Procurement of recycled products.

(a) It is the policy of the State of West Virginia that, to the maximum extent possible, all agencies and instrumentalities of the state purchase recycled products. The goal of the state is to achieve a recycled product mix on future purchases.

(b) In furtherance of the aforesaid goal, the Secretary of the Department of Administration in consultation with the Secretary shall develop a comprehensive procurement program for recycled products. The program shall include, but not be limited to:

(1) A review, and subsequent revision, of existing procurement procedures and bid specifications to remove language that discriminates against recycled products;

(2) A review, and subsequent revision, of existing procurement procedures and bid specifications to ensure that, to the maximum extent possible, all agencies and instrumentalities of the state purchase recycled products: Provided, That recycled paper products shall be given a price preference of ten percent: Provided, however, That priority shall be given to paper products with the highest postconsumer content;

(3) A plan to eliminate, to the maximum extent possible, the use of disposable and single-use products; and

(4) A requirement that all agencies and instrumentalities of the state use compost in all land maintenance and landscaping activities: Provided, That the use of composted or deep stacked poultry litter products, certified by the Commissioner of Agriculture as being free from organisms that are not found in poultry litter produced in this state, have priority unless determined to be economically unfeasible by the agency or instrumentality.

(c) The Secretary shall prepare and submit an annual report on the thirty-first day of January of each year summarizing the program's accomplishments, prospects for the future, and any recommendations. The report shall be submitted to the Governor, Speaker of the House of Delegates and President of the Senate.

§22-15A-22. Prohibition on the disposal of certain items; plans for the proper handling of said items required.

(a) It is unlawful to dispose of lead-acid batteries in a solid waste landfill in West Virginia.

(b) It is unlawful to dispose of tires in a solid waste landfill in West Virginia except for waste tires collected as part of the departments waste tire remediation projects or other collection efforts in accordance with the provisions of this article or the pollution prevention  and open dump program or other state-authorized remediation or clean up programs: Provided, That waste tires may be disposed of in solid waste landfills only when the state agency authorizing the remediation or clean up program has determined there is no reasonable alternative available.

(c) It is unlawful to dispose of yard waste in a solid waste facility in West Virginia: Provided, That the prohibitions do not apply to a facility designed specifically to compost yard waste or otherwise recycle or reuse yard waste: Provided, however, That reasonable and necessary exceptions to the prohibitions may be included as part of the rules promulgated pursuant to subsection (f) of this section.

(d) Effective July 1, 2016, covered electronic devices, as defined in section two of this article, may not be disposed of in a solid waste landfill in West Virginia, if a county or regional solid waste authority determines there is a cost effective recycling alternative for handling covered electronic devices.

(e) The Solid Waste Management Board shall design a comprehensive program to provide for the proper handling of yard waste, lead-acid batteries and tires.

(f) The secretary shall promulgate rules, in accordance with chapter twenty-nine-a of this code, to implement and enforce the program for yard waste, lead-acid batteries and tires.

(g) The secretary's rule shall provide for the disposal of yard waste in a manner consistent with one or any combination of the following:

(1) Disposal in a publicly or privately operated commercial or noncommercial composting facility;

(2) Disposal by composting on the property from which domestic yard waste is generated or on adjoining property or neighborhood property if consent is obtained from the owner of the adjoining or neighborhood property;

(3) Disposal by open burning, where not prohibited; or

(4) Disposal in a publicly or privately operated landfill, only where none of the foregoing options are available. The manner of disposal shall only involve small quantities of domestic yard waste generated only from the property of the participating resident or tenant.

§22-15A-23. Recycling facilities exemption.

Recycling facilities, as defined in section two, article fifteen of this chapter, whose only function is to accept free-of-charge, buy or transfer source-separated material or recycled material for resale or transfer for further processing are exempt from the provisions of said article and article four of chapter twenty-two-c and sections one-c and one-f, article two, chapter twenty-four of this code.

§22-15A-24. Covered manufacturers; prohibited sales; effective date.

(a) This section, along with sections twenty-five, twenty-six, twenty-seven, twenty-eight and twenty-nine of this article apply to a manufacturer that manufactured an average of more than one thousand covered electronic devices per year in the three-year period immediately preceding the initial registration required in section twenty-five of this article.

(b) On or after July 1, 2009, a manufacturer may not sell or lease or offer for sale or lease to any person in the state a new covered electronic device or television unless:

(1) The covered electronic device is labeled with the name of the manufacturer or the manufacturer's brand label; and

(2) The manufacturer has registered with and submitted a registration fee to the secretary as provided in section twenty-five of this article.

(c) If a manufacturer is subject to the requirements of this section and sections twenty-five and twenty-six of this article, a retailer may not sell or lease or offer for sale or lease to any person in the state a new covered electronic device unless the manufacturer has complied with the requirements of this section and sections twenty-five and twenty-six of this article.

§22-15A-25. Manufacturer registration; registration fees; creating the Covered Electronic Devices Takeback Fund.

(a) Each manufacturer wishing to sell or lease covered electronic devices shall register with the secretary no later than January 1, 2009, and each year thereafter. The secretary shall provide a registration form which at a minimum shall include:

(1) The name, address and telephone number of the manufacturer;

(2) The brand names under which the manufacturer sells or offers for sale covered electronic devices or televisions in the state;

(3) Whether the manufacturer has implemented a takeback or recycling program for its covered electronic devices or televisions or both;

(4) If the manufacturer has implemented a takeback or recycling program for its covered electronic devices, the manufacturer must provide a toll-free number and website address that provides information about the takeback or recycling program, including a detailed description of how a person may return a covered electronic device for recycling, refurbishing or reuse.

(5) The secretary may request additional information necessary to further the goals of this program.

(b) One year after the implementation of the program and each year thereafter, the manufacturer must submit a report to the secretary on the implementation of the program during the prior year, including:

(1) The total weight of covered electronic devices received by the program from West Virginia during the prior year;

(2) The total number of covered electronic devices from West Virginia recycled, refurbished and reused during the prior year either by actual count or by using average product weights;

(3) The processes and methods used to recycle, refurbish or reuse the covered electronic devices received from West Virginia; and

(4) If the manufacturer has implemented a covered electronic device or television takeback program, be updated prior to any significant change in the program.

(c) The covered electronic device manufacturer registration fee is:

(1) $10,000 for the initial registration by the manufacturer that has not implemented a takeback program and is due no later than January 1, 2009;

(2) $3,000 for the initial registration by the manufacturer that has implemented a takeback program and is due no later than January 1, 2009;

(3) $5,000 for each subsequent annual registration by a manufacturer that did not have an implemented covered electronic device takeback program in the prior year; and

(4) $500 for each subsequent annual registration by a manufacturer that had implemented and maintained a covered electronic device takeback program in the prior year.

(d) All registration fees collected shall be deposited in a special account in the state Treasury to be known as the Covered Electronic Devices Takeback Fund which is to be administered by the secretary. Expenditures from the fund shall be for recycling grants to counties and municipalities for recycling or other programs that divert covered electronic devices from the waste stream and for the secretary's administrative expense in administering the requirements of this section and sections twenty-four, twenty-six, twenty-seven and twenty-eight of this article. Expenditures are not authorized from collections but are to be made only in accordance with the appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2009, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.

(e) The secretary shall review the registration submitted under this section. If the registration does not meet the requirements of this section and the rules adopted by the secretary, the secretary shall notify the manufacturer of the insufficiency.

(f) Within sixty days after receipt of a notice of insufficiency, the manufacturer shall submit a revised registration that addresses the insufficiencies noted by the secretary.

(g) The secretary shall maintain a list of registered covered electronic device manufacturers.

(h) The secretary shall publish the list of registered covered electronic device manufacturers online to provide retailers easy access to the manufacturers authorized to sell their products in this state.

§22-15A-26. Manufacturers' takeback programs.

(a) Before a manufacturer may offer a covered electronic device for sale or lease in this state, the manufacturer may:

(1) Adopt and implement a takeback program; and

(2) Affix a permanent, readily visible label to the covered electronic device or television with the manufacturer's brand.

(b) The takeback program shall enable a consumer to recycle covered electronic devices or televisions without paying a separate recycling fee at the time of recycling and shall include provisions for:

(1) The manufacturer's collection from a consumer of any covered electronic device that has reached the end of its useful life and is labeled with the manufacturer's brand; and

(2) Recycling or reuse of covered electronic devices collected under subdivision (1) of this section.

(c) The collection of covered electronic devices provided under the takeback program must be reasonable, convenient and available to consumers in the state and designed to meet the collection needs of consumers in the state. Examples of collection methods that alone or combined meet the convenience requirements of this section include:

(1) A system by which the manufacturer or the manufacturer's designee offers the consumer a system for returning covered electronic devices by mail at no charge to the consumer.

(2) A system using a physical collection site that the manufacturer or the manufacturer's designee operates and to which the consumer may return covered electronic devices.

(3) A system using collection events held by the manufacturer or the manufacturer's designee at which the consumer may return covered electronic devices.

(d) Collection services under this section may use existing collection infrastructure for handling covered electronic devices and should encourage the inclusion of systems jointly managed by a group of manufacturers, electronic recyclers and repair shops, recyclers of other commodities, reuse organizations, not-for-profit corporations, retailers, recyclers and other suitable operations. If a manufacturer or its designee offers a mail-back system as described in this section, either individually, by working together with a group of manufacturers or by working with others, it shall be deemed to meet the convenience requirements of this section.

(e) The takeback program shall include information for the consumer on how and where to return the manufacturer's covered electronic device. The manufacturer shall include collection, recycling and reuse information on the manufacturer's publicly available website. The manufacturer shall provide collection, recycling and reuse information to the secretary. The manufacturer may include collection, recycling and reuse information in the packaging or in the other materials that accompany the manufacturer's covered electronic devices when the equipment is sold.

(f) If more than one person is a manufacturer of a certain brand of covered electronic devices as defined in section two of this article, any of those persons may assume responsibility for and satisfy the obligations of a manufacturer under this article for that brand. If none of those persons assumes responsibility or satisfies the obligations of a manufacturer for the covered electronic devices of that brand, the secretary may consider any of those persons to be the responsible manufacturer for purposes of this section and sections twenty-four, twenty-five, twenty-six and twenty-seven of this article.

§22-15A-27. Civil actions and administrative fines; powers and duties of secretary.

(a) Civil action. -– In addition to being subject to injunctive relief under this article, a manufacturer who violates any provision of section twenty-four or twenty-five of this article or of any rule adopted pursuant to said sections is liable for a civil penalty not to exceed $10,000 to be collected in a civil action brought by the secretary. Venue for such actions shall be in the circuit court of Kanawha County. Each day a violation occurs is a separate violation.

(b) Administrative action. –- (1) In addition to any other remedies available at law and after an opportunity for a hearing which may be waived in writing by the person accused of a violation, the secretary may impose a penalty for violation of any provision of section twenty-four or twenty-five of this article or any rule adopted thereunder. The secretary's decision may be appealed to the Environmental Quality Board.

(2) The penalty imposed on a person under this subsection shall be up to $1,000 for each violation, but not to exceed a total of $50,000 a year. Each day a violation occurs is a separate violation under this subsection.

(3) Any penalty imposed under this subsection is payable to the State of West Virginia and collectible in any manner provided by law for the collection of debts.

(4) Any penalty collected under this section shall be placed in the Covered Electronic Devices Takeback Fund.

(c) Powers and duties of secretary. -– The secretary may conduct audits and inspections to determine compliance with the provisions of sections twenty-four and twenty-five of this article and may take enforcement action as provided herein. The secretary may remove a manufacturer from the registration list for failure to pay any penalty imposed under this section and upheld on appeal.

§22-15A-28. Retailer penalties.

(a) The secretary may assess against any retailer that sells covered electronic devices not authorized for sale in this state a penalty up to $500 for each violation, but not to exceed $5,000 total for the year. The secretary's decision may be appealed to the Environmental Quality Board.

(b) A fine under subsection (a) of this section may be assessed only after the retailer that committed the violation has been issued three warnings from the secretary regarding the violation.

(c) Each day on which a violation occurs or continues is a separate violation under this section.

(d) All penalties assessed under this section shall be deposited into the Covered Electronic Devices Takeback Fund.

§22-15A-29. Rulemaking.

The secretary shall propose for promulgation emergency and legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to implement the provisions of sections twenty-four through twenty-eight, inclusive, of this article by January 1, 2009.

§22-16-1. Legislative findings and purpose.

The Legislature finds that:

There are numerous landfills throughout the state that must be closed because they cannot be operated in an environmentally sound manner;

The permittees of many of the landfills that will be closing do not have the financial resources to close their landfills in a manner that is timely and environmentally sound;

As long as these landfills remain open, the threat of continuing harm to the environment and the health and safety of the citizens of West Virginia exists, and the cost to remediate their adverse effects will continue to grow;

The untimely and disorderly closure of these landfills represents a significant threat to the health and safety of the people of West Virginia and its environment; and

It is in the best interests of all the citizens of this state to provide a mechanism to assist the permittees of these landfills in properly closing them.

Therefore, it is the purpose of this article to provide an assistance program that will be available to permittees of landfills that will facilitate the closure of these landfills in a timely and environmentally sound manner.

§22-16-2. Definitions.

As used in this article, unless the context clearly requires a different meaning:

(1) "Commercial recycler" means any person, corporation or business entity whose operation involves the mechanical separation of materials for the purpose of reselling or recycling at least seventy percent by weight of the materials coming into the commercial recycling facility;

(2) "Cost of project" includes the cost of the services authorized in sections three and fifteen of this article, property, material and labor which are essential thereto, financing charges, interest during construction and all other expenses, including legal fees, trustees', engineers' and architects' fees which are necessarily or properly incidental to the program;

(3) "Director" means the director of the Division of Environmental Protection or such other person to whom the director has delegated duties or authority pursuant to sections six or eight, article one of this chapter.;

(4) "Landfill" means any solid waste facility for the disposal of solid waste on land, and also means any system, facility, land, contiguous land, improvements on the land, structures or other appurtenances or methods used for processing, recycling or disposing of solid waste, including landfills, transfer stations, resource recovery facilities and other such facilities not herein specified. Such facility is situated, for purposes of this article, in the county where the majority of the spatial area of such facility is located;

(5) "Permittee" means a person who has or should obtain a permit for a commercial solid waste facility that is a landfill;

(6) "Project" means the providing of closure assistance to one or more landfills under this article.

The definitions provided in section two, article fifteen of this chapter, to the extent they are applicable, apply in this article.

§22-16-3. Commercial solid waste landfill closure assistance program.

(a) There is established within the Division of Environmental Protection the commercial solid waste landfill closure assistance program. The purpose of the program is to provide assistance for the closure of landfills which are required to cease operations pursuant to the closure deadlines provided for in this chapter.

(b) Upon the acceptance of an application of the permittee of a solid waste landfill that satisfies the requirements in section ten of this article, the director shall provide, in accordance with the provisions of this article, and to the extent that funds are available, the following closure related services:

(1) Closure design, including an analysis of the effects of the landfill on groundwater and the design of measures necessary to protect and monitor the groundwater;

(2) Construction of all closure-related structures necessary to provide sufficient leachate management, sediment and erosion control, gas management, groundwater monitoring and final cover and cap, all to meet the closure-related requirements of article fifteen of this chapter and rules promulgated pursuant thereto; and

(3) All surface water and groundwater monitoring activities required pursuant to articles eleven and fifteen of this chapter and applicable rules promulgated thereunder.

(c) To the extent that there are funds available in the fund established in section twelve of this article or subdivision (3), subsection (h), section eleven, article fifteen of this chapter, the director may take remedial actions necessary to protect the groundwater and surface water, other natural resources and the health and safety of the citizens of this state.

§22-16-4. Solid waste assessment fee; penalties.

(a) Imposition. — A solid waste assessment fee is levied and imposed upon the disposal of solid waste at any solid waste disposal facility in this state in the amount of $3.30 per ton beginning July 1, 2021, $3.10 per ton beginning July 1, 2022, $2.90 per ton beginning July 1, 2023, $2.70 per ton beginning July 1, 2024, and $2.50 per ton beginning July 1, 2025, and thereafter or like ratio on any part of a ton of solid waste, except as provided in subsection (e) of this section: Provided, That any solid waste disposal facility may deduct from this assessment fee an amount, not to exceed the fee, equal to the amount that the facility is required by the Public Service Commission to set aside for the purpose of closure of that portion of the facility required to close by article fifteen of this chapter. The fee imposed by this section is in addition to all other fees and taxes levied by law and shall be added to and constitute part of any other fee charged by the operator or owner of the solid waste disposal facility.

(b) Collection, return, payment, and records. — The person disposing of solid waste at the solid waste disposal facility shall pay the fee imposed by this section, whether or not that person owns the solid waste, and the fee shall be collected by the operator of the solid waste facility who shall remit it to the Tax Commissioner:

(1) The fee imposed by this section accrues at the time the solid waste is delivered to the solid waste disposal facility;

(2) The operator shall remit the fee imposed by this section to the Tax Commissioner on or before the 15th day of the month next succeeding the month in which the fee accrued. Upon remittance of the fee, the operator shall file returns on forms and in the manner prescribed by the Tax Commissioner;

(3) The operator shall account to the state for all fees collected under this section and shall hold them in trust for the state until they are remitted to the Tax Commissioner;

(4) If any operator fails to collect the fee imposed by this section, he or she is personally liable for the amount he or she failed to collect, plus applicable additions to tax, penalties, and interest imposed by §11-10-1 et seq. of this code;

(5) Whenever any operator fails to collect, truthfully account for, remit the fee, or file returns with the fee as required in this section, the Tax Commissioner may serve written notice requiring the operator to collect the fees which become collectible after service of the notice, to deposit the fees in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner, and to keep the amount of the fees in the account until remitted to the Tax Commissioner. The notice shall remain in effect until a notice of cancellation is served on the operator or owner by the Tax Commissioner;

(6) Whenever the owner of a solid waste disposal facility leases the solid waste facility to an operator, the operator is primarily liable for collection and remittance of the fee imposed by this section and the owner is secondarily liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations under this section, the owner and the operator of the solid waste facility are jointly and severally responsible and liable for compliance with the provisions of this section;

(7) If the operator or owner responsible for collecting the fee imposed by this section is an association or corporation, the officers of the association or corporation are liable, jointly and severally, for any default on the part of the association or corporation, and payment of the fee and any additions to tax, penalties and interest imposed by §11-10-1 et seq. of this code may be enforced against them as against the association or corporation which they represent; and

(8) Each person disposing of solid waste at a solid waste disposal facility and each person required to collect the fee imposed by this section shall keep complete and accurate records in the form required by the Tax Commissioner in accordance with the rules of the Tax Commissioner.

(c) Regulated motor carriers. — The fee imposed by this section is a necessary and reasonable cost for motor carriers of solid waste subject to the jurisdiction of the Public Service Commission under chapter 24A of this code. Notwithstanding any provision of law to the contrary, upon the filing of a petition by an affected motor carrier, the Public Service Commission shall, within 14 days, reflect the cost of the fee in the motor carrier’s rates for solid waste removal service. In calculating the amount of the fee to the motor carrier, the commission shall use the national average of pounds of waste generated per person per day as determined by the United States Environmental Protection Agency.

(d) Definitions. — For purposes of this section, the term “solid waste disposal facility” means any approved solid waste facility or open dump in this state, and includes a transfer station when the solid waste collected at the transfer station is not finally disposed of at a solid waste facility within this state that collects the fee imposed by this section. Nothing in this section authorizes in any way the creation or operation of or contribution to an open dump.

(e) Exemptions. — The following transactions are exempt from the fee imposed by this section:

(1) Disposal of solid waste at a solid waste facility: (A) By the person who owns, operates, or leases the solid waste disposal facility if it is used exclusively to dispose of waste originally produced by that person in his or her regular business or personal activities; (B) by persons utilizing the facility on a cost-sharing or nonprofit basis; or (C) by a mixed waste processing and resource recovery facility as those facilities are defined in code or rule and which processes a minimum of 70 percent of the material brought to the facility on any given day on a 30-day aggregate basis;

(2) Reuse or recycling of any solid waste;

(3) Disposal of residential solid waste by an individual not in the business of hauling or disposing of solid waste on the days and times designated by the director as exempt from the solid waste assessment fee; and

(4) Disposal of solid waste at a solid waste disposal facility by a commercial recycler which disposes of 30 percent or less of the total waste it processes for recycling. In order to qualify for this exemption each commercial recycler shall keep accurate records of incoming and outgoing waste by weight. The records shall be made available to the appropriate inspectors from the division, upon request.

(f) Procedure and administration. — Notwithstanding §11-10-3 of this code, each and every provision of the West Virginia Tax Procedure and Administration Act set forth in §11-10-1 et seq. of this code applies to the fee imposed by this section with like effect as if the act were applicable only to the fee imposed by this section and were set forth in extenso in this section.

(g) Criminal penalties. — Notwithstanding §11-9-2 and §11-9-3 through §11-9-17 of this code apply to the fee imposed by this section with like effect as if the sections were applicable only to the fee imposed by this section and were set forth in extenso in this section.

(h) Dedication of proceeds. — (1) The proceeds of the fee collected pursuant to this section shall be deposited in the closure cost assistance fund established pursuant to §22-16-12 of this code: Provided, That the director may transfer up to 50 cents for each ton of solid waste disposed of in this state upon which the fee imposed by this section is collected on or after July 1, 1998, to the solid waste enforcement fund established pursuant to §22-15-11 of this code.

(2) Fifty percent of the proceeds of the fee collected pursuant to this article in excess of 30,000 tons per month from any landfill which is permitted to accept in excess of 30,000 tons per month pursuant to §22-15-9 of this code shall be remitted, at least monthly, to the county commission in the county in which the landfill is located. The remainder of the proceeds of the fee collected pursuant to this section shall be deposited in the closure cost assistance fund established pursuant to §22-16-12 of this code.

§22-16-5. Solid waste management board empowered to issue solid waste closure revenue bonds, renewal notes and refunding bonds; requirements and manner of such issuance.

The solid waste management board is hereby empowered to issue, from time to time, solid waste closure revenue bonds and notes of the state in such principal amounts as the board deems necessary to pay the cost of or finance, in whole or in part, the closure of solid waste landfills by the division pursuant to the provisions of this article, but the aggregate amount of all issues of bonds and notes outstanding at one time for all projects authorized hereunder shall not exceed that amount capable of being serviced by revenues pledged for the payment of bonds and notes issued pursuant to this section, and shall not exceed in the aggregate the sum of $150,000,000.

The board may, from time to time, issue renewal notes, issue bonds to pay such notes and whenever it deems refunding expedient, refund any bonds by the issuance of solid waste closure revenue refunding bonds of the state. Except as may otherwise be expressly provided in this article or by the board, every issue of its bonds or notes are obligations of the board payable out of the revenues and reserves created for such purposes by the board, which are pledged for such payment, without preference or priority of the first bonds issued, subject only to any agreements with the holders of particular bonds or notes pledging any particular revenues. Such pledge is valid and binding from the time the pledge is made and the revenue so pledged and thereafter received by the board is immediately subject to the lien of such pledge without any physical delivery thereof or further act and the lien of any such pledge is valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the board irrespective of whether such parties have notice thereof. All such bonds and notes shall have all the qualities of negotiable instruments.

The bonds and notes shall be authorized by resolution of the board, shall bear such dates and shall mature at such times, in the case of any such note or any renewals thereof not exceeding five years from the date of issue of such original note, and in the case of any such bond not exceeding fifty years from the date of issue, as such resolution may provide. The bonds and notes shall bear interest at such rate, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment, at such place and be subject to such terms of redemption as the board may authorize. The board may sell such bonds and notes at public or private sale, at the price the board determines. The bonds and notes shall be executed by the chair and vice chair of the board, both of whom may use facsimile signatures. The official seal of the board or a facsimile thereof shall be affixed thereto or printed thereon and attested, manually or by facsimile signature, by the secretary-treasurer of the board, and any coupons attached thereto shall bear the signature or facsimile signature of the chair of the board. In case any officer whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be such officer before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he or she had remained in office until such delivery and, in case the seal of the board has been changed after a facsimile has been imprinted on such bonds or notes, such facsimile seal will continue to be sufficient for all purposes.

Any resolution authorizing any bonds or notes or any issue thereof may contain provisions (subject to such agreements with bondholders or noteholders as may then exist, which provisions shall be a part of the contract with the holders thereof) as to pledging all or any part of the revenues of the board to secure the payment of the bonds or notes or of any issue thereof; the use and disposition of revenues of the board; a covenant to fix, alter and collect rentals, fees, service charges and other charges so that pledged revenues will be sufficient to pay the cost of projects as provided in this article, related to closure activities, pay principal of and interest on bonds or notes secured by the pledge of such revenues and provide such reserves as may be required by the applicable resolution; the setting aside of reserve funds, sinking funds or replacement and improvement funds and the regulation and disposition thereof; the crediting of the proceeds of the sale of bonds or notes to and among the funds referred to or provided for in the resolution authorizing the issuance of the bonds or notes; the use, lease, sale or other disposition of any solid waste disposal project or any other assets of the board; limitations on the purpose to which the proceeds of sale of bonds or notes may be applied and pledging such proceeds to secure the payment of the bonds or notes or of any issue thereof; agreement of the board to do all things necessary for the authorization, issuance and sale of bonds in such amounts as may be necessary for the timely retirement of notes issued in anticipation of the issuance of bonds; limitations on the issuance of additional bonds or notes; the terms upon which additional bonds or notes may be issued and secured; the refunding of outstanding bonds or notes; the procedure, if any, by which the terms of any contract with bondholders or noteholders may be amended or abrogated, the holders of which must consent thereto, and the manner in which such consent may be given; limitations on the amount of moneys to be expended by the board for operating, administrative or other expenses of the board; and any other matters, of like or different character, which in any way affect the security or protection of the bonds or notes.

In the event that the sum of all reserves pledged to the payment of such bonds or notes are less than the minimum reserve requirements established in any resolution or resolutions authorizing the issuance of such bonds or notes, the chair of the board shall certify, on or before December 1, of each year, the amount of such deficiency to the Governor of the state, for inclusion, if the Governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the board to be pledged for payment of such bonds or notes: Provided, That the Legislature is not required to make any appropriation so requested, and the amount of such deficiencies does not constitute a debt or liability of the state.

Neither the members of the board nor any person executing the bonds or notes are liable personally on the bonds or notes or be subject to any personal liability or accountability by reason of the issuance thereof.

§22-16-6. Establishment of reserve funds, replacement and improvement funds and sinking funds; fiscal agent; purposes for use of bond proceeds; application of surplus.

(a) Before issuing any revenue bonds in accordance with the provisions of this article, the solid waste management board shall consult with and be advised by the West Virginia water development authority as to the feasibility and necessity of the proposed issuance of revenue bonds.

(b) Prior to issuing revenue bonds under the provisions of this article, the board shall enter into agreements satisfactory to the West Virginia water development authority with regard to the selection of all consultants, advisors and other experts to be employed in connection with the issuance of such bonds and the fees and expenses to be charged by such persons, and to establish any necessary reserve funds and replacement and improvement funds, all such funds to be administered by the water development authority, and, so long as any such bonds remain outstanding, to establish and maintain a sinking fund or funds to retire such bonds and pay the interest thereon as the same may become due. The amounts in any such sinking fund, as and when so set apart by the board, shall be remitted to the West Virginia water development authority at least thirty days previous to the time interest or principal payments become due, to be retained and paid out by the water development authority, as agent for the board, in a manner consistent with the provisions of this article and with the resolution pursuant to which the bonds have been issued. The water development authority shall act as fiscal agent for the administration of any sinking fund and reserve fund established under each resolution authorizing the issuance of revenue bonds pursuant to the provisions of this article, and shall invest all funds not required for immediate disbursement in the same manner as funds are invested pursuant to the provisions of section fifteen, article one, chapter twenty-two-c of this code.

(c) Notwithstanding any other provision of this article to the contrary, no revenue bonds shall be issued, nor the proceeds thereof expended or distributed, pursuant to the provisions of this article, without the prior approval of the water development authority.

(d) If the proceeds of revenue bonds issued for any solid waste landfill closure project exceed the cost thereof, the surplus shall be paid into the fund herein provided for the payment of principal and interest upon such bonds. Such fund may be used by the fiscal agent for the purchase or redemption of any of the outstanding bonds payable from such fund at the market price, but not at a price exceeding the price at which any of such bonds are in the same year redeemable, as fixed by the board in its said resolution, and all bonds redeemed or purchased shall forthwith be canceled, and shall not again be issued.

§22-16-7. Legal remedies of bondholders.

Any holder of solid waste disposal revenue bonds issued under the authority of this article or any of the coupons appertaining thereto, except to the extent the rights given by this article may be restricted by the applicable resolution, may by civil action, mandamus or other proceeding, protect and enforce any rights granted under the laws of this state or granted under this article, by the resolution authorizing the issuance of such bonds, and may enforce and compel the performance of all duties required by this article, or by the resolution, to be performed by the board or any officer or employee thereof, including the fixing, charging and collecting of sufficient rentals, fees, service charges or other charges.

§22-16-8. Bonds and notes not debt of state, county, municipality or of any political subdivision; expenses incurred pursuant to article.

Solid waste closure revenue bonds and notes and solid waste closure revenue refunding bonds issued under authority of this article and any coupons in connection therewith are not a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state, and the holders or owners thereof have no right to have taxes levied by the Legislature or taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon, but such bonds and notes are payable solely from the revenues and funds pledged for their payment as authorized by this article unless the notes are issued in anticipation of the issuance of bonds or the bonds are refunded by refunding bonds issued under authority of this article, which bonds or refunding bonds are payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes shall contain on the face thereof a statement to the effect that the bonds or notes, as to both principal and interest, are not debts of the state or any county, municipality or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment.

All expenses incurred in carrying out the provisions of this article are payable solely from funds provided under authority of this article. This article does not authorize the board to incur indebtedness or liability on behalf of or payable by the state or any county, municipality or political subdivision thereof.

§22-16-9. Solid waste closure revenue bonds lawful investments.

The provisions of sections nine and ten, article six, chapter twelve of this code notwithstanding, all solid waste closure revenue bonds issued pursuant to this article are lawful investments for the West Virginia state Board of Investments and are also lawful investments for financial institutions as defined in section two, article one, chapter thirty-one-a of this code, and for insurance companies.

§22-16-10. Limitation on assistance.

The director may provide closure assistance only to permittees who meet the following requirements:

(1) The permittee of a landfill that does not have a liner and ceases accepting solid waste on or before November 30, 1991, except for those landfills allowed to accept solid waste pursuant to the provisions of section seventeen, article fifteen of this chapter and ceases accepting solid waste on or before the extension deadline as determined by the director; or the permittee of a landfill that has only a single liner and ceases accepting solid waste on or before September 30, 1993, or the permittee of a landfill as provided for in subsection (g), section twelve, article sixteen of this chapter;

(2) The permittee of the landfill must demonstrate to the satisfaction of the director that it does not have the financial resources on hand or the ability to generate the amounts needed to comply, in a timely manner, with the closure requirements provided in article fifteen of this chapter and any rules promulgated pursuant thereto: Provided, That any permittee required to close a landfill, or any portion thereof, due to the lack of an approved composite liner system, who collects solid waste within this state which is disposed outside this state, shall not be eligible for closure assistance: Provided, however, That any permittee which is a Class I municipality shall be eligible for closure assistance when the permittee elects to and pays the solid waste assessment fee which would otherwise be levied and imposed upon the disposal of the solid waste by subsection (a), section four of this article, if the solid waste was disposed of within the state; and

(3) The permittee must maintain a permit for the landfill pursuant to the provisions of section ten, article fifteen of this chapter and maintain the full amount of the bond required to be submitted pursuant to section twelve of said article.

§22-16-11. Application for closure assistance.

(a) The secretary shall provide an application and application procedure for all permitees of solid waste landfills desiring to receive closure assistance under this article.

(b) The secretary shall, within a reasonable time after receipt of a complete application, notify the applicant of the acceptance or rejection of the application. If the application is rejected the notice shall contain the reasons for the rejection.

§22-16-12. Solid Waste Facility Closure Cost Assistance Fund; closure extension; reporting requirements.

(a) The Solid Waste Facility Closure Cost Assistance Fund continues as a special revenue account in the State Treasury. The fund operates as a special fund in which all deposits and payments do not expire to the General Revenue Fund, but remain in the account and are available for expenditure in the succeeding fiscal year. Separate subaccounts may be established within the special account for the purpose of identification of various revenue resources and payment of specific obligations.

(b) Interest earned on any money in the fund shall be deposited to the credit of the fund.

(c) The fund consists of the following:

(1) Moneys collected and deposited in the State Treasury which are specifically designated by Acts of the Legislature for inclusion in the fund, including moneys collected and deposited into the fund pursuant to §22-16-4 of this code;

(2) Contributions, grants, and gifts from any source, both public and private, which may be used by the secretary for any project or projects;

(3) Amounts repaid by permittees pursuant to §22-15-18 of this code; and

(4) All interest earned on investments made by the state from moneys deposited in this fund.

(d) The Solid Waste Management Board, upon written approval of the secretary, has the authority to pledge all or part of the revenues paid into the Solid Waste Facility Closure Cost Assistance Fund as needed to meet the requirements of any revenue bond issue or issues of the Solid Waste Management Board authorized by this article, including the payment of principal of, interest and redemption premium, if any, on the revenue bonds and the establishing and maintaining of a reserve fund or funds for the payment of the principal of, interest and redemption premium, if any, on the revenue bond issue or issues where other moneys pledged may be insufficient. Any pledge of moneys in the Solid Waste Facility Closure Cost Assistance Fund for revenue bonds is a prior and superior charge on the fund over the use of any of the moneys in the fund to pay for the cost of any project on a cash basis. Expenditures from the fund, other than for the retirement of revenue bonds, may only be made in accordance with this article.

(e) The amounts deposited in the fund may be expended only on the cost of projects as provided in §22-16-3 and §22-16-15 of this code, as provided in subsection (f) of this section, and for payment of bonds and notes issued pursuant to §22-16-5 of this code. No more than two percent of the annual deposits to the fund may be used for administrative purposes.

(f) Notwithstanding any provision of this article, upon request of the Solid Waste Management Board, and with the approval of the projects by the Secretary of the Department of Environmental Protection, the secretary may pledge and place into escrow accounts up to an aggregate of $2 million of the fund to satisfy two years debt service requirement that permittees of publicly owned landfills and transfer stations are required to meet in order to obtain loans. Pledges shall be made on a project-by-project basis, may not exceed $500,000 for a project, and are made available after loan commitments are received. The secretary may pledge funds for a loan only when the following conditions are met:

(1) The proceeds of the loan are used only to perform construction of a transfer station or a composite liner system that is required to meet Title 47, Series 38, Solid Waste Management Rules;

(2) The permittee dedicates all yearly debt service revenue, as determined by the Public Service Commission, to meet the repayment schedule of the loan, before it uses available revenue for any other purpose; and

(3) That any funds pledged may only be paid to the lender if the permittee is in default on the loan.

(g) Notwithstanding any provision of this code to the contrary, the Elkins-Randolph County Landfill, located in Randolph County, and the Webster County Landfill, located in Webster County, are eligible for funds from the Solid Waste Facility Closure Cost Assistance Fund necessary to complete their closure upon the filing of appropriate application. Upon the filing of an appropriate application, the Department of Environmental Protection shall work with the applicant to ensure the application meets the department’s requirements.

(h) The Department of Environmental Protection is required to file, by January 1 of each year, an annual report with the Joint Committee on Government and Finance providing details on the manner in which the landfill closure assistance funds were expended for the prior fiscal year.

(i) The Prichard Landfill in Wayne County is eligible for funds from the Solid Waste Facility Closure Cost Assistance Fund necessary to complete post-closure maintenance and monitoring upon the filing of an appropriate application. In the event of a permit transfer, neither the state nor the Wayne County Economic Development Authority or entity may assume any liability from the private landfill other than post-closure maintenance and monitoring costs.

(j)(1) Notwithstanding any other provision of this code, upon completion of the landfill closure-related services at all eligible landfills pursuant to §22-16-3 of this code, the secretary may transfer excess money from the Solid Waste Facility Closure Cost Assistance Fund to the Reclamation of Abandoned and Dilapidated Properties Program Fund created by §22-15A-30 of this code. However, the secretary may not transfer moneys from the Solid Waste Facility Closure Cost Assistance Fund that are required to be maintained so that the department can conduct post-closure activities authorized by this article and the legislative rules promulgated thereunder. The department shall maintain in the Solid Waste Facility Closure Cost Assistance Fund a minimum balance of twice the total cost of post-closure expenses projected for the fiscal year as a buffer for unanticipated necessary post-closure activities.

(2) Contingent upon the Department of Environmental Protection securing private foundation funding to establish the Reclamation of Abandoned and Dilapidated Properties Program, and prior to the completion of the landfill closure-related services at all eligible landfills, the secretary may expend money from the Solid Waste Facility Closure Cost Assistance Fund for pilot projects conducted by the Department of Environmental Protection demonstrating the function of the Reclamation of Abandoned and Dilapidated Properties Program.

§22-16-13. Promulgation of rules by director.

The director shall promulgate rules that are necessary for the efficient and orderly implementation and administration of this article.

§22-16-14. Liability of owner or operator.

Nothing in this article relieves the owner, operator or permittee of a landfill of the legal duties, obligations or liabilities incident to the ownership or operation of a landfill, except that the performance by the director of any of the activities set forth in subsection (b), section three of this article relieves the operator from the requirement to perform such activities.

§22-16-15. Procedures for handling remedial actions; payment of costs of remedial actions to be paid by owner or operator.

When the director, in performing activities pursuant to this article determines action, not set forth in subsection (b), section three of this article, is necessary to prevent or remediate any adverse effects of the landfill he or she shall notify the permittee and make and enter an order directing the permittee to take corrective or remedial action. The order shall contain findings of fact upon which the director based his or her determination to make and enter such order. The director shall fix a time limit for the completion of such action.

The director shall cause a copy of any such order to be served by registered or certified mail or by a law-enforcement officer upon such person.

If the corrective action is not taken within the time limit or the permittee notifies the director that it is unable to comply with the order, the director may expend amounts, as provided herein, to make the remediation.

The costs reasonably incurred in any remedial action taken by the director as provided in this article may be paid for initially by amounts available to the director in the fund created in subdivision (3), subsection (h), section eleven, article fifteen of this chapter or, to the extent funds are available, from the fund created in section twelve of this article, and such sums so expended, if not promptly repaid by the permittee upon request of the director, may be recovered from the permittee by appropriate civil action to be initiated by the Attorney General upon request of the director. All funds so recovered shall be deposited in the fund from which said funds were expended.

§22-16-16. Right of entry.

The director or his or her duly authorized representatives have the right, upon presentation of proper identification, to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of a landfill, to determine the feasibility of the remediation or prevention of such adverse effects and to perform the activities set forth in sections three and fifteen of this article. Such entry is as an exercise of the police power of the state for the protection of public health, safety and general welfare and is not an act of condemnation of property or trespass thereon. Nothing contained in this section eliminates any obligation to follow any process that may be required by law.

§22-16-17. Authority of director to accept grants and gifts.

The director has the authority, on behalf of the Division of Environmental Protection, to accept for deposit in the closure cost assistance fund established in section twelve of this article, all gifts, grants, property, funds, security interest, money, materials, labor, supplies or services from the United States of America or from any governmental unit or any person, firm or corporation, and to carry out the terms or provisions of, or make agreements with respect to, or pledge, any gifts or grants, and to do any and all things necessary, useful, desirable or convenient in connection with the procuring, acceptance or disposition of gifts or grants.

§22-16-18. Management and control of project.

 (a) The director shall manage and control all projects, and may make and enter into all contracts or agreements necessary and incidental to the performance of the duties imposed under this article.

(b) On or before December 31, 1992, the director, in consultation with the Public Service Commission, shall complete a statewide closure plan, a comprehensive analysis of the total costs of closure anticipated under such statewide closure plan, and a proposal for implementation of closure assistance funding. The director, in consultation with the Public Service Commission, shall prepare and issue a report which shall include the following:

(1) An identification of specific landfills expected to be closed during the three-year period next following the completion of the plan;

(2) An estimate of the projected closure costs associated with each such identified landfill, including such engineering and technical analysis as may be necessary to provide a reasonable estimate;

(3) The extent to which closure assistance will be needed for each such specific landfill; and

(4) An assessment of the order of priority which should be established for closure of landfills and all moneys potentially available therefor.

The plan and report required pursuant to the provisions of this section shall be submitted to the Legislature for its approval or rejection by a concurrent resolution.

§22-17-1. Short title.

This article may be known and cited as the “Underground Storage Tank Act”.

§22-17-2. Declaration of policy and purpose.

The Legislature recognizes that large quantities of petroleum and hazardous substances are stored in underground storage tanks within the State of West Virginia and that emergency situations involving these substances can and will arise which may present a hazard to human health, safety or the environment. The Legislature also recognizes that some of these substances have been stored in underground storage tanks in the state in a manner insufficient to protect human health, safety or the environment. The Legislature further recognizes that the federal government has enacted Subtitle I of the federal Resource Conservation and Recovery Act of 1976, as amended, which provides for a federal program to remove the threat and remedy the effects of releases from leaking underground storage tanks and authorizes federal assistance to respond to releases of petroleum from underground storage tanks. The Legislature declares that the State of West Virginia desires to produce revenue for matching the federal assistance provided under the federal act; to create a program to control the installation, operation and abandonment of underground storage tanks and to provide for corrective action to remedy releases of regulated substances from these tanks. Therefore, the Legislature hereby enacts the West Virginia underground storage tank act to create an underground storage tank program and to assume regulatory primacy for such federal programs in this state.

§22-17-3. Definitions.

(a) “Change in status” means causing an underground storage tank to be no longer in use or a change in the reported uses, contents or ownership of an underground storage tank.

(b) “Director” means the director of the West Virginia Division of Environmental Protection or such other person to whom the director has delegated authority or duties pursuant to section six or eight, article one of this chapter.

(c) “Nonoperational storage tank” means an underground storage tank in which regulated substances will not be deposited or from which regulated substances will not be dispensed after November 8, 1984.

(d) “Operator” means any person in control of, or having responsibility for, the daily operation of an underground storage tank.

(e) “Owner” means:

(1) In the case of an underground storage tank in use on November 8, 1984, or brought into use after that date, a person who owns an underground storage tank used for the storage, use or dispensing of a regulated substance.

(2) In the case of an underground storage tank in use before November 8, 1984, but no longer in use on that date, a person who owned such a tank immediately before the discontinuation of its use.

(f) “Person” means any individual, trust, firm, joint stock company, corporation (including government corporations), partnership, association, state, municipality, commission, political subdivision of a state, interstate body, consortium, joint venture, commercial entity and the United States government.

(g) “Petroleum” means petroleum, including crude oil or any fraction thereof which is liquid at a temperature of sixty degrees Fahrenheit and a pressure of fourteen and seven-tenths pounds per square inch absolute.

(h) “Regulated substance” means:

(1) Any substance defined in section 101 (14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, but not including any substance regulated as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as amended; or

(2) Petroleum.

(i) “Release” means any spilling, leaking, emitting, discharging, escaping, leaching or disposing from an underground storage tank into groundwater, surface water or subsurface soils.

(j) “Subtitle I” means Subtitle I of the federal Resource Conservation and Recovery Act of 1976, as amended.

(k) “Underground storage tank” means one tank or a combination of tanks, and the underground pipes connected thereto, which is used to contain an accumulation of regulated substances and the volume of which, including the volume of the underground pipes connected thereto, is ten percent or more beneath the surface of the ground, but does not include:

(1) Farm or residential tanks with a capacity of eleven hundred gallons or less and used for storing motor fuel for noncommercial purposes;

(2) Tanks used for storing heating oil for consumptive use on the premises where stored;

(3) Septic tanks;

(4) A pipeline facility, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, or the Hazardous Liquid Pipeline Safety Act of 1979, or an intrastate pipeline facility regulated under state laws comparable to the provisions of either of those acts;

(5) Surface impoundments, pits, ponds or lagoons;

(6) Storm water or wastewater collection systems;

(7) Flow-through process tanks;

(8) Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations; or

(9) Storage tanks situated in an underground area such as a basement, cellar, mineworking, drift, shaft or tunnel, if the storage tank is situated upon or above the surface of the floor.

The term “underground storage tank” does not include any pipes connected to any tank which is described in subparagraphs (1) through (9).

§22-17-4. Designation of Division of Environmental Protection as the state underground storage tank program lead agency.

The Division of Environmental Protection is hereby designated as the state underground storage tank program lead agency for purposes of Subtitle I and is hereby authorized to take all actions necessary or appropriate to secure to this state the benefits of said legislation. In carrying out the purposes of this article, the director is hereby authorized to cooperate with the United States environmental protection agency, other agencies of the federal government, agencies of this state or other states, and other interested persons in all matters relating to underground storage tank regulation.

§22-17-5. Powers and duties of director; integration with other acts.

(a) In addition to all other powers and duties prescribed in this article or otherwise by law, and unless otherwise specifically set forth in this article, the director shall perform any and all acts necessary to carry out the purposes and requirements of Subtitle I.

(b) The director shall cooperate with and may receive and expend money from the federal government or other source.

(c) The director may accept applications for and issue policies of insurance to owners or operators of petroleum underground storage tanks that are subscribers to the underground storage tank insurance fund and may accept, review, pay and settle claims pursuant to those policies of insurance under such terms as the director may establish by rules proposed for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code.

(d) The director may enter into any agreements, including reimbursement or subrogation agreements, contracts and cooperative arrangements under such terms and conditions as he or she deems appropriate, with other state agencies, educational institutions or other organizations and individuals as necessary to implement the provisions of this article.

(e) The director may take such actions as are necessary and appropriate to carry out and enforce any agreements, contracts or cooperative arrangements entered into as provided in subsection (d) of this section, including the institution and prosecution of suits in any state or federal court or administrative tribunal, whether in the director's name or in the name of an insured or a subrogor.

§22-17-6. Promulgation of rules and standards by director.

(a) The director has overall responsibility for the promulgation of rules under this article. In promulgating and revising such rules the director shall comply with the provisions of chapter twenty-nine-a of this code. Such rules shall be no more stringent than the rules and regulations promulgated by the United States environmental protection agency pursuant to Subtitle I.

(b) The director shall promulgate rules applicable to owners or operators of underground storage tanks or other affected persons, as appropriate, as follows:

(1) A requirement for a yearly registration fee for underground storage tanks;

(2) A requirement that an owner or operator register with the director each underground storage tank after the effective date of the rules and that an owner or operator report annually on changes in status of any underground storage tank;

(3) Such release detection, prevention and correction rules applicable to underground storage tanks as may be necessary to protect human health and the environment;

(4) Requirements for maintaining a leak detection system, inventory control systems together with tank testing, or a comparable system or method designed to identify releases from underground storage tanks in a manner consistent with the protection of human health and the environment;

(5) Requirements for maintaining records of any monitoring or leak detection system or inventory control system or tank testing system;

(6) Rules for procedures and amount of fees to be assessed for the underground storage tank administrative fund, the leaking underground storage tank response fund and the underground storage tank insurance fund established pursuant to this article, which shall include a capitalization fee to be assessed against all owners or operators of underground tanks to be used for initial establishment of the underground storage tank insurance fund;

(7) Procedures for making expenditures from the underground storage tank administrative fund, the leaking underground storage tank response fund and the underground storage tank insurance fund;

(8) Acceptable methods by which an owner or operator may demonstrate financial responsibility;

(9) Requirements for reporting of releases and corrective action taken in response to a release;

(10) Requirements for taking corrective action in response to a release from an underground storage tank;

(11) Requirements for the closure of tanks to prevent future releases of regulated substances to the environment;

(12) Requirements for certification of installation, removal, retrofit, testing and inspection of underground storage tanks and leak detection systems by a registered professional engineer or other qualified person;

(13) Requirements for public participation in the enforcement of the state underground storage tank program;

(14) Procedures establishing when and how the director determines if information obtained by any agency under this article is confidential;

(15) Standards of performance for new underground storage tanks;

(16) Procedures for the review, acceptance, settlement and payment of claims under policies issued by the director pursuant to subsection (c) of section five of this article; or

(17) Any other rules or standards necessary and appropriate for the effective implementation and administration of this article.

§22-17-7. Underground storage tank advisory committee; purpose.

The underground storage tank advisory committee is continued. The committee is composed of seven members, which shall include a member of the West Virginia petroleum council, a member of the West Virginia service station dealers association, a member of the West Virginia petroleum marketers association, the director, a member of the West Virginia manufacturers association, the West Virginia Insurance Commissioner, and a representative from the citizenry-at-large who is appointed by the Governor.

The committee is advisory to the director and the Division of Environmental Protection regarding the expenditure of funds from the leaking underground storage tank response fund and the underground storage tank insurance fund created by this article. The director shall deliver to the committee annually a report on expenditures made from each fund. The committee shall consider any matter brought before it by the director or any member of the committee and may consider any matter referred to it by a person not a member of the committee. At the conclusion of its consideration of any proposal, the committee shall make its recommendation to the director. The director is not bound by any recommendations of the committee. The committee may also formulate general or long-range plans for improvements in the administration of the funds for the consideration of the director.

By the second Wednesday of January of each year the committee shall prepare and deliver to the director and to the Legislature a report of all matters it considered, recommendations it made and plans it formulated during the preceding calendar year. The report shall include any recommendation it may have for changes in the law which would be necessary to implement any of its administrative recommendations.

§22-17-8. Notification requirements.

(a) Underground storage tank owners shall notify the director of any underground storage tank brought into use on or after June 10, 1988, within thirty days of such use, on a form prescribed by the director. The notice shall specify the date of tank installation, tank location, type of construction, size and age of such tank and the type of regulated substance to be stored therein. If, at the time this information is required to be submitted, the director has not prepared the form required by this section, the owner shall nevertheless submit the information in writing to the director.

(b) A person who sells a tank intended to be used as an underground storage tank shall reasonably notify the owner or operator of such tank of the owner’s notification requirements of this section.

(c) A new owner of any underground storage tank shall notify the director in writing of the transfer of ownership of any underground storage tank. The new owner upon the effective date of such transfer becomes subject to all provisions of this article. The director may prescribe by rule the appropriate form and timing for such notification.

§22-17-9. Registration requirements; undertaking activities without registration.

(a) No person may operate any underground storage tank for the purpose of storing any regulated substance identified or listed under this article without registering with the director and paying a registration fee for such underground storage tank.

(b) No person may install any underground storage tank after the effective date of this article without first registering said tank in a form and manner prescribed by the director.

§22-17-10. Financial responsibility.

The director shall promulgate rules, as provided in section six of this article, containing requirements for maintaining evidence of financial responsibility as deemed necessary and desirable for taking reasonable corrective action and for compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operating an underground storage tank. Such means of financial responsibility may include, but not be limited to, insurance, guarantee, surety bond, letter of credit, proof of assets or qualification as a self-insurer. In promulgating rules under this section, the director is authorized to specify policy or other contractual terms, conditions or defenses which are necessary or are unacceptable in establishing such evidence of financial responsibility in order to effectuate the purposes of this article.

§22-17-11. Performance standards for new underground storage tanks.

(a) The director shall promulgate performance standards for new underground storage tanks as provided in section six of this article. The performance standards for new underground storage tanks shall include, but not be limited to, design, construction, installation, release detection and compatibility standards.

(b) New underground storage tank construction standards must include at least the following requirements:

(1) That an underground storage tank will prevent releases of regulated substances stored therein, which may occur as a result of corrosion or structural failure, for the operational life of the tank;

(2) That an underground storage tank will be cathodically protected against corrosion, constructed of noncorrosive material, steel clad with a noncorrosive material or designed in a manner to prevent the release or threatened release of stored regulated substances; and

(3) That materials used in the construction or lining of an underground storage tank are compatible with the regulated substances to be stored therein.

§22-17-12. Confidentiality.

(a) Any records, reports or information obtained from any persons under this article shall be available to the public, except that upon a showing satisfactory to the director by any person that records, reports or information, or a particular part thereof, to which the director or any officer, employee, or representative thereof has access under this section, if made public, would divulge information entitled to protection under section 1905 of title 18 of the United States Code, such information or particular portion thereof is confidential in accordance with the purposes of this section, except that such record, report, document or information may be disclosed to other officers, employees or authorized representatives of the United States environmental protection agency or of this state if such officers, employees or authorized representatives are implementing the provisions of this article.

(b) Any person who knowingly and willfully divulges or discloses any information entitled to protection under this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned in the county jail for not more than one year, or both fined and imprisoned.

(c) In submitting data under this article, a person required to provide such data may designate the data which he or she believes is entitled to protection under this section and submit such designated data separately from other data submitted under this article. A designation under this subsection shall be made in writing and in such manner as the director may prescribe.

§22-17-13. Inspections, monitoring and testing.

(a) For the purposes of developing or assisting in the development of any rule, conducting any study, taking any corrective action or enforcing the provisions of this article, any owner or operator of an underground storage tank shall, upon request of the director, furnish information relating to such tanks, their associated equipment and contents, conduct reasonable monitoring or testing, permit the director or his or her authorized representative at all reasonable times to have access to, and to copy all records relating to such tanks and permit the director or his or her authorized representative to have access to the underground storage tank for corrective action.

(b) For the purposes of developing or assisting in the development of any rule, conducting any study, taking corrective action or enforcing the provisions of this article, the director or his or her authorized representative may:

(1) Enter at reasonable times any establishment or other place where an underground storage tank is located;

(2) Inspect and obtain samples from any person of any regulated substances contained in such tank;

(3) Conduct monitoring or testing of the tanks, associated equipment, contents or surrounding soils, air, surface, water or groundwater; and

(4) Take corrective action as specified in this article.

Each such inspection shall be commenced and completed with reasonable promptness.

§22-17-14. Corrective action for underground petroleum storage tanks.

(a) Prior to the effective date of rules promulgated pursuant to subdivision (9) or (10), subsection (b), section six of this article, the director is authorized to:

(1) Require the owner or operator of an underground storage tank to undertake corrective action with respect to any release of petroleum from said tank when the director determines that such corrective action shall be done properly and promptly by the owner or operator if, in the judgment of the director, such action is necessary to protect human health and the environment; or

(2) Undertake corrective action with respect to any release of petroleum into the environment from an underground storage tank if, in the judgment of the director, such action is necessary to protect human health and the environment.

The corrective action undertaken or required under this subsection shall be such as may be necessary to protect human health and the environment. The director shall use funds in the leaking underground storage tank response fund established pursuant to this article for payment of costs incurred for corrective action taken under subparagraph (2) of this subsection in the manner set forth in subsection (e), section twenty-one of this article. The director shall give priority in undertaking corrective actions under this subsection, and in issuing orders requiring owners or operators to undertake such actions, to releases of petroleum from underground storage tanks which pose the greatest threat to human health and the environment and where the director cannot identify a solvent owner or operator of the tank who will undertake action properly.

(b) Following the effective date of rules promulgated under subdivision (9) or (10), subsection (b), section six of this article, all actions or orders of the director described in subsection (a) of this section shall be in conformity with such rules. Following such effective date the director may undertake corrective action with respect to any release of petroleum into the environment from an underground storage tank only if, in the judgment of the director, such action is necessary to protect human health and environment and one or more of the following situations exists:

(1) If no person can be found within ninety days, or such shorter period as may be necessary to protect human health and the environment, who is an owner or operator of the tank concerned, subject to such corrective action rules and capable of carrying out such corrective action properly.

(2) A situation exists which requires prompt action by the director under this subsection to protect human health and the environment.

(3) Corrective action costs at a facility exceed the amount of coverage required pursuant to the provisions of section ten of this article and, considering the class or category of underground storage tank from which the release occurred, expenditures from the leaking underground storage tank response fund are necessary to assure an effective corrective action.

(4) The owner or operator of the tank has failed or refused to comply with an order of the director under this section or of the environmental quality board under article one, chapter twenty-two-b of this code to comply with the corrective action rules.

(c) The director is authorized to draw upon the leaking underground storage tank response fund in order to take action under subdivision (1) or (2), subsection (b) of this section if the director has made diligent good faith efforts to determine the identity of the party or parties responsible for the release or threatened release and:

(1) He or she is unable to determine the identity of the responsible party or parties in a manner consistent with the need to take timely corrective action; or

(2) The party or parties determined by the director to be responsible for the release or threatened release have been informed in writing of the director’s determination and have been requested by the director to take appropriate corrective action but are unable or unwilling to take such action in a timely manner.

(d) The written notice to a responsible party must inform the responsible party that if that party is subsequently found liable for releases pursuant to subsection (a) or (b) of this section, he or she will be required to reimburse the leaking underground storage tank response fund for the costs of the investigation, information gathering and corrective action taken by the director.

(e) If the director determines that immediate response to an imminent threat to public health and welfare or the environment is necessary to avoid substantial injury or damage to persons, property or resources, corrective action may be taken pursuant to subsections (a) and (b) of this section without the prior written notice required by subdivision (2), subsection (c) of this section. In such a case the director must give subsequent written notice to the responsible party within fifteen days after the action is taken describing the circumstances which required the action to be taken without prior notice.

(f) As used in this section, the term “owner” does not include any person who, without participating in the management of an underground storage tank and otherwise not engaged in petroleum production, refining or marketing, holds indicia of ownership primarily to protect the person’s security interest in the tank.

§22-17-15. Administrative orders; injunctive relief; requests for reconsideration.

(a) Whenever on the basis of any information, the director determines that any person is in violation of any requirement of this article, he or she may issue an order stating with reasonable specificity the nature of the violation and requiring compliance within a reasonable specified time period or the director may commence a civil action in the circuit court of the county in which the violation occurred or in the circuit court of Kanawha County for appropriate relief, including a temporary or permanent injunction. The director may, except as provided in subsection (b) of this section, stay any order he or she issues upon application, until the order is reviewed by the environmental quality board.

(b) Any person issued an order may file a notice of request for reconsideration with the director not more than seven days from the issuance of such order. The notice of request for reconsideration shall identify the order to be reconsidered and shall set forth in detail the reasons for which reconsideration is requested. The director shall grant or deny the request for reconsideration within twenty days of the filing of the notice of request of reconsideration.

§22-17-16. Civil penalties.

(a) Any violator who fails to comply with an order of the director issued under subsection (a), section fifteen of this article within the time specified in the order is liable for a civil penalty of not more than $25,000 for each day of continued noncompliance.

(b) Any owner who knowingly: (1) Fails to register; or (2) submits false information pursuant to this article is liable for a civil penalty not to exceed $10,000 for each tank which is not registered or for which false information is submitted.

(c) Any owner or operator of an underground storage tank who fails to comply with any requirement or standard promulgated by the director under section six of this article is subject to a civil penalty not to exceed $10,000 for each tank for each day of violation.

§22-17-17. Public participation.

Any adversely affected person may intervene in any civil or administrative proceeding under this article when such person claims an interest relating to the property or transaction which is the subject of the action and such person is so situated that the disposition of the action may as a practical matter impair or impede his or her ability to protect that interest.

§22-17-18. Appeal to environmental quality board.

Any person aggrieved or adversely affected by an order of the director made and entered in accordance with the provisions of this article may appeal to the environmental quality board, pursuant to the provisions of article one, chapter twenty-two-b of this code.

§22-17-19. Disclosures required in deeds and leases.

(a) The grantor in any deed or other instrument of conveyance or any lessor in any lease or other instrument whereby any real property is let for a period of time shall disclose in such deed, lease or other instrument the fact that such property, or the substrata of such property whether or not the grantor or lessor is at time of such conveyance or lease the owner of such substrata, contains an underground storage tank. The provisions of this subsection only apply to those grantors or lessors who owned or had an interest in the real property when the same or the substrata thereof contained an underground storage tank which was being actively used for storing any regulated substance or who have actual knowledge or reason to believe that such real property or the substrata thereof contains an underground storage tank.

(b) Any lessee of real estate or of any substratum underlying said real estate who intends to install an underground storage tank in the leased real estate or any substratum underlying the same shall disclose in writing at the time of such lease, or within thirty days prior to such installation, such fact to the lessor of such real estate or substratum. Such disclosure shall describe the proposed location upon said property where the tank is to be located and all other information required by the director.

§22-17-20. Appropriation of funds; Underground Storage Tank Administrative Fund.

(a) The secretary shall collect annual registration fees from owners of underground storage tanks. The registration fee collected under this section may not exceed $65 per tank per year. All such registration fees and the net proceeds of all fines, penalties and forfeitures collected under this article including accrued interest shall be paid into the State Treasury into a special revenue fund designated the “Underground Storage Tank Administrative Fund” to be used to defray the cost of administering this article in accordance with rules promulgated pursuant to section six of this article. The secretary shall promulgate an emergency rule in accordance with article three, chapter twenty-nine-a of this code, implementing the increase in registration fees. This fee of up to $65 is effective for the fiscal year ending June 30, 2004.

(b) The total fee assessed shall be sufficient to assure a balance in the fund not to exceed one million dollars at the beginning of each year.

(c) Any amount received pursuant to subsection (a) of this section which exceeds the annual balance required in subsection (b) of this section shall be deposited into the Leaking Underground Storage Tank Response Fund established pursuant to this article to be used for the purposes set forth for expenditure of moneys in the fund.

(d) The net proceeds of all fines, penalties and forfeitures collected under this article shall be appropriated as directed by article XII, section 5 of the Constitution of West Virginia. For the purposes of this section, the net proceeds of such fines, penalties and forfeitures are the proceeds remaining after deducting from the proceeds those sums appropriated by the Legislature for defraying the cost of administering this article. In making the appropriation for defraying the cost of administering this article, the Legislature shall first take into account the sums included in the special fund prior to deducting additional sums as may be needed from the civil fines, civil penalties and forfeitures collected pursuant to this article. At the end of each fiscal year any unexpended balance of the collected civil fines, civil penalties, forfeitures and registration fees shall not be transferred to the General Revenue Fund but shall remain in the fund.

(e) The secretary shall submit an annual report to the Joint Committee on Government and Finance on or before January 1 each year providing information as to the status of the Underground Storage Tank Fund, the registration fees or forfeitures collected and any fines and penalties assessed pursuant to this article, the amount of net proceeds of fines, penalties and forfeitures paid into the fund and information as to the progress of the underground storage tank program in the protection of human health and the environment.

§22-17-21. Leaking underground storage tank response fund.

(a) Each underground petroleum storage tank owner within this state shall pay an annual fee, if assessed by the director, to establish a fund to assure adequate response to leaking underground petroleum storage tanks. The fees assessed pursuant to this section shall not exceed $25 per tank per year. The proceeds of such assessment shall be paid into the State Treasury into a special fund designated “the leaking underground storage tank response fund”, which is hereby continued.

(b) Each owner of an underground petroleum storage tank subject to a fee assessment under subsection (a) of this section shall pay a fee based on the number of underground petroleum storage tanks he or she owns. The director shall vary the fees annually to a level necessary to produce a fund of at least $750,000 at the beginning of each calendar year taking into account those amounts deposited in the fund pursuant to subsection (c), section twenty of this article. In no event shall the fees assessed in this section be set to produce revenues exceeding $250,000 in any year.

(c) When the unobligated balance of the leaking underground storage tank response fund exceeds $1 million at the end of a calendar year, fee assessment under this section shall cease until such time as the unobligated balance at the end of any year is less than $750,000.

(d) At the end of each fiscal year, any unexpended balance including accrued interest of such collected fees shall not be transferred to the General Revenue Fund but shall remain in the fund.

(e) The director is authorized to enter into agreements and contracts and to expend the moneys in the fund for the following purposes:

(1) Responding to underground petroleum storage tank releases when, based on readily available information, the director determines that immediate action may prevent or mitigate significant risk of harm to human health, safety or the environment from regulated substances in situations for which no federal funds are immediately available for such response, cleanup or containment: Provided, That the director shall apply for and diligently pursue available federal funds for such releases at the earliest possible time.

(2) Reimbursing any person for reasonable cleanup costs incurred with the authorization of the director in responding to an underground petroleum storage tank release.

(3) Reimbursing any person for reasonable costs incurred with the authorization of the director responding to perceived, potential or threatened releases from underground petroleum storage tanks where response activities do not indicate that any release has occurred.

(4) Financing the nonfederal share of the cleanup and site reclamation activities pursuant to Subtitle I of the federal Resource Conservation and Recovery Act, as amended, as well as future operation and maintenance costs for these sites: Provided, That no portion of the moneys in the leaking underground storage tank response fund shall be used for defraying the costs of administering this article.

(5) Financing the nonfederal share of costs incurred in compensating third parties, including payment of judgments, for bodily injury and property damage, caused by release of petroleum into the environment from an underground storage tank.

§22-17-22. Underground Storage Tank Insurance Fund.

(a) The secretary may establish an Underground Storage Tank Insurance Fund for the purpose of satisfying the financial responsibility requirements established pursuant to section ten of this article. In addition to the capitalization fee to be assessed against all owners or operators of underground storage tanks provided by subdivision (6), subsection (b), section six of this article, the secretary shall promulgate rules establishing an annual financial responsibility assessment to be assessed on and paid by owners or operators of underground storage tanks who are unable to obtain insurance or otherwise meet the financial responsibility requirements established pursuant to section ten of this article. Assessments shall be paid into the State Treasury into a special fund designated the Underground Storage Tank Insurance Fund.

(b) At the end of each fiscal year, any unexpended balance of such assessment shall not be transferred to the General Revenue Fund but shall remain in the Underground Storage Tank Insurance Fund. Upon the effective date of the enactment of the amendment to this section passed during the 2007 regular session of the West Virginia Legislature, the Underground Storage Tank Insurance Fund shall cease to operate as an insurance fund. Any remaining assets of the fund shall be administered by the secretary pursuant to subsections (c), (d), (e), (f), (g) and (h) of this section. Because the fund was intended to be self funding, the secretary is not bound by any terms, limitations or conditions contained in any insurance policies issued by the fund, but in no case may reimburse any person for an amount in excess of the limits of liability.

(c) Legislative Findings Regarding Cessation of the Fund. -- The Underground Storage Tank Insurance Fund was established by the Legislature to assist storage tank owners who were mandated by federal law to have insurance but were unable to find insurance in the private market, and was funded solely by assessments of policyholders paid to the fund. Policies were issued from the years 1990 to 2000. As private insurance coverage became available and a number of the insured left the business, premiums paid into the fund decreased. These factors, combined with greater than anticipated remediation costs at sites remediated during the fund's solvency, caused claims against the fund to exceed moneys collected. As a result, the fund became insolvent. Although the fund was not intended to and does not create any legal obligation for the state for any claims made against the fund, it is the sense of the Legislature that to the extent public funds are determined by the Legislature to be available, they may be appropriated to assist individuals with the remediation of these sites and to prevent potential adverse environmental impacts and harm to human health that could result from a failure to remediate. This assistance by the state in funding these remediations would be intended to provide an option for the insured to fulfill their legal duty to reclaim these sites and the Department of Environmental Protection may not assume any legal liability for remediation of these sites beyond the assistance provided pursuant to subsections (d), (e), (f), (g) and (h) of this section.

(d) The secretary shall request that the Governor include in each budget submitted to the Legislature funding to cause remediation of these existing sites as identified by the secretary. The secretary shall submit a proposal to undertake or cause to be undertaken these remediations to the Joint Committee of Government and Finance by November 1, 2007. The secretary's proposal shall provide, at a minimum, budget amounts needed each year for completing these remediation activities by December 31, 2009, but in no case later than December 31, 2012.

(e) The secretary shall also request funding to reimburse insured persons and vendors who have incurred costs not yet reimbursed as of the effective date of this section by the fund for work undertaken at insured sites previously authorized by the secretary.

(f) Any agreements with insured persons for payment of remediations shall provide that, prior to any remediation activities on any site or for reimbursement for expenses previously incurred, an agreement be executed that provides that the insured person or persons agree that the site will be remediated pursuant to either subsection (g) or (h) of this section.

(g) The secretary may cause remediation of an insured site to a voluntary remediation standard as provided in article twenty-two of this chapter, including any appropriate land-use covenant and other deed restrictions and any other conditions as established by the secretary prior to payment for any costs associated with a site remediation.

(h) If an insured person demonstrates to the secretary that it is more cost effective to clean up a site through an alternative program or method that will result in remediation at a standard equal to or greater than provided for in subsection (g) of this section, then the secretary may, as an alternative, authorize use of that method or program. The secretary may place any appropriate requirements upon the insured person as a condition for undertaking a remediation by an alternative program or method.

§22-17-23. Duplicative enforcement prohibited.

No enforcement proceeding brought pursuant to this article may be duplicated by an enforcement proceeding subsequently commenced under some other article of this code with respect to the same transaction or event unless such subsequent proceeding involves the violation of a permit or permitting requirement of such other article.

§22-18-1. Short title.

This article may be known and cited as the “Hazardous Waste Management Act”.

§22-18-2. Declaration of policy.

(a) The Legislature finds that:

(1) Continuing technological progress and increases in the amount of manufacture and the abatement of air and water pollution have resulted in ever increasing quantities of hazardous wastes;

(2) The public health and safety and the environment are threatened where hazardous wastes are not managed in an environmentally sound manner;

(3) The knowledge and technology necessary for alleviating adverse health, environmental and aesthetic impacts resulting from current hazardous waste management and disposal practices are generally available;

(4) The manufacture, refinement, processing, treatment and use of coal, raw chemicals, ores, petroleum, gas and other natural and synthetic products are activities that make a significant contribution to the economy of this state; and

(5) The problem of managing hazardous wastes has become a matter of statewide concern.

(b) Therefore, it is hereby declared that the purposes of this article are:

(1) To protect the public health and safety and the environment from the effects of the improper, inadequate or unsound management of hazardous wastes;

(2) To establish a program of regulation over the storage, transportation, treatment and disposal of hazardous wastes;

(3) To assure the safe and adequate management of hazardous wastes within this state; and

(4) To assume regulatory primacy through Subtitle C of the Resource Conservation and Recovery Act.

§22-18-3. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(1) “Director” means the director of the Division of Environmental Protection or such other person to whom the director has delegated authority or duties pursuant to sections six or eight, article one of this chapter;

(2) “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous waste into or on any land or water so that such hazardous waste or any constituent thereof may enter the environment or be emitted into the air, or discharged into any waters, including groundwaters;

(3) “Division” means the Division of Environmental Protection;

(4) “Generation” means the act or process of producing hazardous waste materials;

(5) “Hazardous and Solid Waste Amendments of 1984” means the federal Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) amending the Resource Conservation and Recovery Act;

(6) “Hazardous waste” means a waste or combination of wastes, which because of its quantity, concentration or physical, chemical or infectious characteristics, may: (A) Cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, disposed of or otherwise managed;

(7) “Hazardous waste fuel” means fuel produced from any hazardous waste identified or listed pursuant to subdivision (2), subsection (a), section six of this article, or produced from any hazardous waste identified or listed pursuant to section six;

(8) “Hazardous waste management” means the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery and disposal of hazardous wastes;

(9) “Land disposal” means any placement of hazardous waste in a landfill, surface impoundment, waste pile, injection well, land treatment facility, salt dome formation, salt bed formation, or underground mine or cave;

(10) “Manifest” means the form used for identifying the quantity, composition and the origin, routing and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment or storage;

(11) “Person” means any individual, trust, firm, joint stock company, public, private or government corporation, partnership, association, state or federal agency, the United States government, this state or any other state, municipality, county commission or any other political subdivision of a state or any interstate body;

(12) “Resource Conservation and Recovery Act” means the federal Resource Conservation and Recovery Act of 1976, 90 Stat. 2806, as amended;

(13) “Storage” means the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste;

(14) “Subtitle C” means Subtitle C of the Resource Conservation and Recovery Act;

(15) “Treatment” means any method, technique or process, including neutralization, designed to change the physical, chemical or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable to recovery, amenable to storage or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous;

(16) “Waste” means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded material including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Section 402 of the federal Water Pollution Control Act, as amended, or source, special nuclear or by-product material as defined by the federal Atomic Energy Act of 1954, as amended.

§22-18-4. Designation of Division of Environmental Protection as the state hazardous waste management lead agency.

The Division of Environmental Protection is hereby designated as the hazardous waste management lead agency for this state for purposes of Subtitle C of the Resource Conservation and Recovery Act, and is hereby authorized to take all action necessary or appropriate to secure to this state the benefits of said legislation. In carrying out the purposes of this article, the director is hereby authorized to cooperate with the federal environmental protection agency and other agencies of the federal government, this state and other states and other interested persons in all matters relating to hazardous waste management.

§22-18-5. Powers and duties of director; integration with other acts; establishment of study of hazardous waste management.

(a) In addition to all other powers and duties prescribed in this article or otherwise by law, and unless otherwise specifically set forth in this article, the director shall perform any and all acts necessary to carry out the purposes and requirements of Subtitle C of the Resource Conservation and Recovery Act.

(b) The director shall integrate all provisions of this article for purposes of administration and enforcement and shall avoid duplication to the maximum extent practicable, with the appropriate provisions of: The public health laws in chapter sixteen of this code; article sixteen-a, chapter nineteen of this code; this chapter; and chapters twenty-two-b and twenty-two-c of this code.

(c) The director may enter into any agreements, including reimbursement for services rendered, contracts or cooperative arrangements, under such terms and conditions as he or she deems appropriate, with other state agencies, educational institutions or other organizations and individuals as necessary to implement the provisions of this article.

(d) The director shall cooperate with and may receive and expend money from the federal government and other sources.

(e) The director shall: (1) Encourage, participate in and conduct an ongoing investigation and analysis of methods, incentives, technologies of source reduction, reuse, recycling or recovery of potentially hazardous waste and a strategy for encouraging the utilization or reduction of hazardous waste; and (2) investigate the feasibility of operating an information clearinghouse for hazardous wastes.

(f) The director shall provide for the continuing education and training of appropriate division personnel in matters of hazardous waste management.

§22-18-6. Promulgation of rules by director.

(a) The director has overall responsibility for the promulgation of rules under this article. The director shall promulgate the following rules, in consultation with the Department of Health, the Office of Emergency Services, the Public Service Commission, the state Fire Marshal, the department of public safety, the Division of Highways, the Department of Agriculture, and the environmental quality board. In promulgating and revising such rules, the director shall comply with the provisions of chapter twenty-nine-a of this code, shall avoid duplication to the maximum extent practicable with the appropriate provisions of the acts and laws set out in subsection (b), section five of this article and shall be consistent with but no more expansive in coverage nor more stringent in effect than the rules and regulations promulgated by the federal environmental protection agency pursuant to the Resource Conservation and Recovery Act:

(1) Rules establishing a plan for the safe and effective management of hazardous wastes within the state;

(2) Rules establishing criteria for identifying the characteristics of hazardous waste, identifying the characteristics of hazardous waste and listing particular hazardous wastes which are subject to the provisions of this article: Provided, That:

(A) Each waste listed below shall, except as provided in paragraph (B) of this subdivision, be subject only to regulation under other applicable provisions of federal or state law in lieu of this article until proclamation by the Governor finding that at least six months have elapsed since the date of submission of the applicable study required to be conducted under Section 8002 of the federal Solid Waste Disposal Act, as amended, and that regulations have been promulgated with respect to such wastes in accordance with Section 3001 (b)(3)(C) of the Resource Conservation and Recovery Act, and finding in the case of the wastes identified in subparagraph (iv) of this paragraph that the regulation of such wastes has been authorized by an act of Congress in accordance with Section 3001 (b)(2) of the Resource Conservation and Recovery Act:

(i) Fly ash waste, bottom ash waste, slag waste and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels;

(ii) Solid waste from the extraction, beneficiation and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore;

(iii) Cement kiln dust waste; and

(iv) Drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil or natural gas or geothermal energy.

(B) Owners and operators of disposal sites for wastes listed in paragraph (A) of this subdivision may be required by the director through rule prescribed under authority of this section:

(i) As to disposal sites for such wastes which are to be closed, to identify the locations of such sites through surveying, platting or other measures, together with recordation of such information on the public record, to assure that the locations where such wastes are disposed of are known and can be located in the future; and

(ii) To provide chemical and physical analysis and composition of such wastes, based on available information, to be placed on the public record;

(3) Rules establishing such standards applicable to generators of hazardous waste identified or listed under this article as may be necessary to protect public health and safety and the environment, which standards shall establish requirements respecting: (A) Record-keeping practices that accurately identify the quantities of such hazardous waste generated, the constituents thereof which are significant in quantity or in potential harm to public health or the environment and the disposition of such wastes; (B) labeling practices for any containers used for the storage, transport or disposal of such hazardous waste such as will identify accurately such waste; (C) use of appropriate containers for such hazardous waste; (D) furnishing of information on the general chemical composition of such hazardous wastes to persons transporting, treating, storing or disposing of such wastes; (E) use of a manifest system and any other reasonable means necessary to assure that all such hazardous waste generated is designated for treatment, storage or disposal in, and arrives at treatment, storage or disposal facilities (other than facilities on the premises where the waste is generated) with respect to which permits have been issued which are required: (i) By this article or any rule required by this article to be promulgated; (ii) by Subtitle C of the Resource Conservation and Recovery Act; (iii) by the laws of any other state which has an authorized hazardous waste program pursuant to Section 3006 of the Resource Conservation and Recovery Act; or (iv) by Title I of the federal Marine Protection, Research and Sanctuaries Act; and (F) the submission of reports to the director at such times as the director deems necessary setting out the quantities of hazardous wastes identified or listed under this article that the generator has generated during a particular time period, and the disposition of all such hazardous waste;

(4) Rules establishing such performance standards applicable to owners and operators of facilities for the treatment, storage or disposal of hazardous waste identified or listed under this article as may be necessary to protect public health and safety and the environment, which standards shall, where appropriate, distinguish in such standards between requirements appropriate for new facilities and for facilities in existence on the date of promulgation of such rules and shall include, but need not be limited to, requirements respecting: (A) Maintaining records of all hazardous wastes identified or listed under this article which are treated, stored or disposed of, as the case may be, and the manner in which such wastes were treated, stored or disposed of; (B) satisfactory reporting, monitoring and inspection and compliance with the manifest system referred to in subdivision (3) of subsection (a) of this section; (C) treatment, storage or disposal of all such waste received by the facility pursuant to such operating methods, techniques and practices as may be satisfactory to the director; (D) the location, design and construction of such hazardous waste treatment, disposal or storage facilities; (E) contingency plans for effective action to minimize unanticipated damage from any treatment, storage or disposal of any such hazardous waste; (F) the maintenance of operation of such facilities and requiring such additional qualifications as to ownership, continuity of operation, training for personnel and financial responsibility as may be necessary or desirable; however, no private entity may be precluded by reason of criteria established under this subsection from the ownership or operation of facilities providing hazardous waste treatment, storage or disposal services where such entity can provide assurances of financial responsibility and continuity of operation consistent with the degree and duration of risks associated with the treatment, storage or disposal of specified hazardous waste; and (G) compliance with the requirements of section eight of this article respecting permits for treatment, storage or disposal;

(5) Rules specifying the terms and conditions under which the director shall issue, modify, suspend, revoke or deny such permits as may be required by this article;

(6) Rules for the establishment and maintenance of records; the making of reports; the taking of samples and the performing of tests and analyses; the installing, calibrating, operating and maintaining of monitoring equipment or methods; and the providing of any other information as may be necessary to achieve the purposes of this article;

(7) Rules establishing standards and procedures for the certification of personnel at hazardous waste treatment, storage or disposal facilities or sites;

(8) Rules for public participation in the implementation of this article;

(9) Rules establishing procedures and requirements for the use of a manifest during the transport of hazardous wastes;

(10) Rules establishing procedures and requirements for the submission and approval of a plan, applicable to owners or operators of hazardous waste storage, treatment and disposal facilities, as necessary or desirable for closure of the facility, post-closure monitoring and maintenance, sudden and accidental occurrences and nonsudden and accidental occurrences;

(11) Rules establishing a schedule of fees to recover the costs of processing permit applications and permit renewals;

(12) Rules, including exemptions and variances, as appropriate: (A) Establishing standards and prohibitions relating to the management of hazardous waste by land disposal methods; (B) establishing standards and prohibitions relating to the land disposal of liquid hazardous wastes or free liquids contained in hazardous wastes and any other liquids which are not hazardous wastes; (C) establishing standards applicable to producers, distributors or marketers of hazardous waste fuels; and (D) as are otherwise necessary to allow the state to assume primacy for the administration of the federal hazardous waste management program under the Resource Conservation and Recovery Act and in particular, the Hazardous and Solid Waste Amendments of 1984: Provided, That such rules authorized by this subdivision shall be consistent with but no more expansive in coverage nor more stringent in effect than rules and regulations promulgated by the federal environmental protection agency under Subtitle C;

(13) Rules: (A) Establishing air pollution performance standards and permit requirements and procedures as may be necessary to comply with the requirements of this article and in accordance with the provisions of article five of this chapter. Such permits shall be in addition to those permits required by section eight of this article;

(B) For the monitoring and control of air emissions at hazardous waste treatment storage and disposal facilities, including, but not limited to, open tanks, surface impoundments and landfills, as may be necessary to protect human health and the environment; and

(C) Establishing standards applicable to the owners and operators of facilities which burn, for purposes of energy recovery, any fuel produced from any hazardous waste identified or listed pursuant to subdivision (2), subsection (a) of this section or which is produced from any hazardous waste identified or listed pursuant to subdivision (2), subsection (a) of this section and any other material, as may be necessary to protect human health and the environment: Provided, That such legislative rules shall be consistent with Subtitle C.

Any person aggrieved or adversely affected by an order of the director made and entered to implement or enforce the rules required by this subdivision or by the failure or refusal of said director to act within a reasonable time on an application for a permit or by the issuance or denial of or by the terms and conditions of a permit granted under the provisions of the rules required by this subdivision, may appeal to the air quality board in accordance with the procedure set forth in article one, chapter twenty-two-b of this code, and orders made and entered by said board are subject to judicial review in accordance with the procedures set forth in article one, chapter twenty-two-b of this code, except that as to cases involving an order granting or denying an application for a permit, revoking or suspending a permit or approving or modifying the terms and conditions of a permit or the failure to act within a reasonable time on an application for a permit, the petition for judicial review shall be filed in the circuit court of Kanawha County.

(14) Rules developing performance standards and other requirements under this section as may be necessary to protect public health and the environment from any hazard associated with the management of used oil and recycled oil. The director shall ensure that such rules do not discourage the recovery or recycling of used oil. For these purposes, "used oil" shall mean any oil that has been refined from crude oil, or any synthetic oil, that has been used and as a result of such use is contaminated by physical or chemical impurities.

(15) Such other rules as are necessary to effectuate the purposes of this article.

(b) The rules required by this article to be promulgated shall be reviewed and, where necessary, revised not less frequently than every three years. Additionally, the rules required to be promulgated by this article shall be revised, as necessary, within two years of the effective date of any amendment of the Resource Conservation and Recovery Act and within six months of the effective date of any adoption or revision of rules required to be promulgated by the Resource Conservation and Recovery Act.

 (c) Notwithstanding any other provision in this article, the director shall not promulgate rules which are more properly within the jurisdiction and expertise of any of the agencies empowered with rule-making authority pursuant to section seven of this article.

§22-18-7. Authority and jurisdiction of other state agencies.

(a) The Commissioner of the Division of Highways, in consultation with the director, and avoiding inconsistencies with and avoiding duplication to the maximum extent practicable with legislative rules required to be promulgated pursuant to this article by the director or any other rule-making authority, and in accordance with the provisions of chapter twenty-nine-a of this code, shall promulgate, as necessary, legislative rules governing the transportation of hazardous wastes by vehicle upon the roads and highways of this state. Such legislative rules shall be consistent with applicable rules issued by the federal Department of Transportation and consistent with this article: Provided, That such legislative rules apply to the interstate transportation of hazardous waste within the boundaries of this state, as well as the intrastate transportation of such waste.

In lieu of those enforcement and inspection powers conferred upon the Commissioner of the Division of Highways elsewhere by law with respect to the transportation of hazardous waste, the Commissioner of the Division of Highways has the same enforcement and inspection powers as those granted to the director, or authorized representative or agent, or any authorized employee or agent of the division, as the case may be, under sections twelve, thirteen, fourteen, fifteen, sixteen, seventeen and eighteen of this article. The limitations of this subsection do not affect in any way the powers of the Division of Highways with respect to weight enforcement.

(b) The Public Service Commission, in consultation with the director, and avoiding inconsistencies with and avoiding duplication to the maximum extent practicable with rules required to be promulgated pursuant to this article by the director or any other rule-making authority, and in accordance with the provisions of chapter twenty-nine-a of this code, shall promulgate, as necessary, rules governing the transportation of hazardous wastes by railroad in this state. Such rules shall be consistent with applicable rules and regulations issued by the federal Department of Transportation and consistent with this article: Provided, That such rules apply to the interstate transportation of hazardous waste within the boundaries of this state, as well as the intrastate transportation of such waste.

In lieu of those enforcement and inspection powers conferred upon the Public Service Commission elsewhere by law with respect to the transportation of hazardous waste, the Public Service Commission has the same enforcement and inspection powers as those granted to the director or authorized representative or agent or any authorized employee or agent of the division, as the case may be, under sections twelve, thirteen, fourteen, fifteen, sixteen, seventeen and eighteen of this article.

(c) The rules required to be promulgated pursuant to subsections (a) and (b) of this section apply equally to those persons transporting hazardous wastes generated by others and to those transporting hazardous wastes they have generated themselves or combinations thereof. Such rules shall establish such standards, applicable to transporters of hazardous waste identified or listed under this article, as may be necessary to protect public health, safety and the environment. Such standards shall include, but need not be limited to, requirements respecting: (A) Recordkeeping concerning such hazardous waste transported, and its source and destination; (B) transportation of such waste only if properly labeled; (C) compliance with the manifest system referred to in subdivision (3), subsection (a), section six of this article; and (D) transportation of all such hazardous waste only to the hazardous waste treatment, storage or disposal facilities which the shipper designates on the manifest form to be a facility holding a permit issued under: (1) This article or any rule required by this article to be promulgated; (2) Subtitle C; (3) the laws of any other state which has an authorized hazardous waste program pursuant to Section 3006 of the Resource Conservation and Recovery Act; or (4) Title I of the Federal Marine Protection, Research and Sanctuaries Act.

(d) The Secretary of the Department of Health, in consultation with the director, and avoiding inconsistencies with and avoiding duplication to the maximum extent practicable with legislative rules required to be promulgated pursuant to this article by the director or any other rule-making authority, shall promulgate rules pursuant to article five-j, chapter twenty of this code. The Secretary of the Department of Health shall have the same enforcement and inspection powers as those granted to the director or agent or any authorized employee or agent of the division, as the case may be, under sections twelve, thirteen, fourteen, fifteen, sixteen, seventeen and eighteen of this article, and in addition thereto, the Department of Health shall have those inspection and enforcement powers with respect to hazardous waste with infectious characteristics as provided for in article five-j, chapter twenty of this code.

(e) The Environmental Quality Board, in consultation with the director, and in accordance with the provisions of chapter twenty-nine-a of this code, shall, as necessary, promulgate water quality standards governing discharges into the waters of this state of hazardous waste resulting from the treatment, storage or disposal of hazardous waste as may be required by this article. The standards shall be consistent with this article.

(f) All legislative rules promulgated pursuant to this section shall be consistent with rules and regulations promulgated by the federal environmental protection agency pursuant to the resource conservation and recovery act.

(g) The director shall submit written comments to the Legislative Rule-Making Review Committee regarding all legislative rules promulgated pursuant to this article.

§22-18-8. Permit process; undertaking activities without a permit.

(a) No person may own, construct, modify, operate or close any facility or site for the treatment, storage or disposal of hazardous waste identified or listed under this article, nor shall any person store, treat or dispose of any such hazardous waste without first obtaining a permit from the director for such facility, site or activity and all other permits as required by law. Such permit shall be issued, after public notice and opportunity for public hearing, upon such reasonable terms and conditions as the director may direct if the application, together with all supporting information and data and other evidence establishes that the construction, modification, operation or closure, as the case may be, of the hazardous waste facility, site or activity will not violate any provisions of this article or any of the rules promulgated by the director as required by this article: Provided, That in issuing the permits required by this subsection, the director shall not regulate those aspects of a hazardous waste treatment, storage or disposal facility which are the subject of the permitting or licensing requirements of: (1) Section seven of this article, and which need not be regulated in order for the director to perform his or her duties under this article; or (2) subdivision (13), subsection (a), section six of this article, which need not be regulated under any other provision of this article.

(b) The director shall prescribe a form of application for all permits issued by the director.

(c) The director may require a plan for the closure of such facility or site to be submitted along with an application for a permit which plan for closure shall comply in all respects with the requirements of this article and any rules promulgated hereunder. Such plan of closure is subject to modification upon application by the permit holder to the director and approval of such modification by the director.

(d) An environmental analysis shall be submitted with the permit application for all hazardous waste treatment, storage or disposal facilities which are major facilities as that term may be defined by rules promulgated by the director: Provided, That facilities in existence on November 19, 1980, need not comply with this subsection. Such environmental analysis shall contain information of the type, quality and detail that will permit adequate consideration of the environmental, technical and economic factors involved in the establishment and operation of such facilities:

(1) The portion of the applicant’s environmental analysis dealing with environmental assessments shall contain, but not be limited to:

(A) The potential impact of the method and route of transportation of hazardous waste to the site and the potential impact of the establishment and operation of such facilities on air and water quality, existing land use, transportation and natural resources in the area affected by such facilities;

(B) A description of the expected effect of such facilities; and

(C) Recommendations for minimizing any adverse impact.

(2) The portion of the applicant’s environmental analysis dealing with technical and economic assessments shall contain, but not be limited to:

(A) Detailed descriptions of the proposed site and facility, including site location and boundaries and facility purpose, type, size, capacity and location on the site and estimates of the cost and charges to be made for material accepted, if any;

(B) Provisions for managing the site following cessation of operation of the facility; and

(C) Qualifications of owner and operation, including a description of the applicant’s prior experience in hazardous waste management operations.

(e) Any person undertaking, without a permit, any of the activities for which a permit is required under this section or under section seven of this article, or any person violating any term or condition under which a permit has been issued pursuant to this section or pursuant to section seven of this article, is subject to the enforcement procedures of this article.

(f) Notwithstanding any provision to the contrary in subsections (a) through (e) of this section or section seven of this article, any surface coal mining and reclamation operation that has a permit covering any coal mining wastes or overburden which has been issued or approved under article three of this chapter, shall be considered to have all necessary permits issued pursuant to this article with respect to the treatment, storage or disposal of such wastes or overburden. Rules promulgated under this article are not applicable to treatment, storage or disposal of coal mining wastes and overburden which are covered by such a permit.

§22-18-9. Corrective action.

(a) All permits issued after the date the state is delegated authority by the federal environmental protection agency to administer the portion of the federal hazardous waste program covered under the Hazardous and Solid Waste Amendments of 1984 shall contain conditions requiring corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage or disposal facility seeking a permit under this article regardless of the time at which waste was placed in such unit. Permits issued under this article shall contain schedules of compliance for such corrective action (where such corrective action cannot be completed prior to issuance of the permit) and assurances of financial responsibility for completing such corrective action.

(b) The director shall amend the standards under subdivision (4), subsection (a), section six of this article, regarding corrective action required at facilities for the treatment, storage or disposal of hazardous waste listed or identified in rules promulgated pursuant to subdivision (2), subsection (a), section six of this article, to require that corrective action be taken beyond the facility boundary where necessary to protect human health and the environment unless the owner or operator of the facility concerned demonstrates to the satisfaction of the director that, despite the owner or operator’s best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. Such rules shall take effect immediately upon promulgation, and shall apply to:

(1) All facilities operating under permits issued under subdivision (4), subsection (a), section six of this article; and

(2) All landfills, surface impoundments and waste pile units (including any new units, replacement of existing units or lateral expansions of existing units) which receive hazardous waste after July 26, 1982. Pending promulgation of such rules the director shall issue corrective action orders for facilities referred to in subdivisions (1) and (2) above on a case-by-case basis consistent with the purposes of this subsection.

§22-18-10. Public participation in permit process.

Before the issuing of a permit to any person with respect to any facility for the treatment, storage or disposal of hazardous waste under sections seven or eight of this article, the director or other permit issuing authority shall:

(a) Cause to be published as a Class I-0 legal advertisement in a newspaper of general circulation, and the publication area is the county wherein the real estate or greater portion thereof is situate, and broadcast over local radio stations notice of the director's or other permit issuing authority's intention to issue such permit; and

(b) Transmit written notice of the director's or other permit issuing authority's intention to issue such permit to each unit of local government having jurisdiction over the area in which such facility is proposed to be located and to each state agency having any authority under state law with respect to the construction or operation of such facility.

If within forty-five days the director or other permit issuing authority receives written notice of opposition to the director's or other permit issuing authority's intention to issue such permit and a request for a hearing, or if the director or other permit issuing authority determines on his or her own initiative, to have a hearing he or she shall hold an informal public hearing (including an opportunity for presentation of written and oral views) on whether he or she should issue a permit for the proposed facility. Whenever possible the director or other permit issuing authority shall schedule such hearing at a location convenient to the nearest population center to such proposed facility and give notice in the aforementioned manner of the date, time and subject matter of such hearing.

§22-18-11. Transition program for existing facilities.

Any person who owns or operates a facility required to have any permit under this article, which facility was in existence on July 9, 1981, shall be treated as having been issued such permit until such time as final administrative disposition is made with respect to an application for such permit: Provided, That on said date such facility is operating and continues to operate in compliance with the interim status requirement of the federal environmental protection agency established pursuant to section 3005 of the federal Solid Waste Disposal Act, as amended, if applicable, and in such a manner as will not cause or create a substantial risk of a health hazard or public nuisance or a significant adverse effect upon the environment: Provided, however, That the owner or operator of such facility shall make a timely and complete application for such permit in accordance with rules promulgated pursuant to this article specifying procedures and requirements for obtaining such permit.

§22-18-12. Confidential information.

Information obtained by any agency under this article shall be available to the public unless the director certifies such information to be confidential. The director may make such certification where any person shows, to the satisfaction of the director, that the information or parts thereof, if made public, would divulge methods, processes or activities entitled to protection as trade secrets. Nothing in this section may be construed as limiting the disclosure of information by the division to any officer, employee or authorized representative of the state or federal government concerned with effecting the purposes of this article.

Any person who knowingly and willfully divulges or discloses any information entitled to protection under this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned in the county jail for not more than six months, or both fined and imprisoned.

§22-18-13. Inspections; right of entry; sampling; reports and analyses; subpoenas.

(a) The director or any authorized representative, employee or agent of the division, upon the presentation of proper credentials and at reasonable times, may enter any building, property, premises, place, vehicle or permitted facility where hazardous wastes are or have been generated, treated, stored, transported or disposed of for the purpose of making an investigation with reasonable promptness to ascertain the compliance by any person with the provisions of this article or the rules promulgated by the director or permits issued by the director hereunder. Nothing contained in this section eliminates any obligation to follow any process that may be required by law.

(b) The director or his or her authorized representative, employee or agent shall make periodic inspections at every permitted facility as necessary to effectively implement and enforce the requirements of this article or the rules promulgated by the director or permits issued by the director hereunder. After an inspection is made, a report shall be prepared and filed with the director and a copy of such inspection report shall be promptly furnished to the person in charge of such building, property, premises, place, vehicle or facility. Such inspection reports shall be available to the public in accordance with the provisions of article one, chapter twenty-nine-b of this code.

(c) Whenever the director has cause to believe that any person is in violation of any provision of this article, any condition of a permit issued by the director, any order or any rule promulgated by the director under this article, he or she shall immediately order an inspection of the building, property, premises, place, vehicle or permitted facility at which the alleged violation is occurring.

(d) The director or any authorized representative, employee or agent of the division may, upon presentation of proper credentials and at reasonable times, enter any establishment, building, property, premises, vehicle or other place maintained by any person where hazardous wastes are being or have been generated, transported, stored, treated or disposed of to inspect and take samples of wastes, soils, air, surface water and groundwater and samples of any containers or labelings for such wastes. In taking such samples, the division may utilize such sampling methods as it determines to be necessary, including, but not limited to, soil borings and monitoring wells. If the representative, employee or agent obtains any such samples, prior to leaving the premises, he or she shall give to the owner, operator or agent in charge a receipt describing the sample obtained and, if requested, a portion of each such sample equal in volume or weight to the portion retained. The division shall promptly provide a copy of any analysis made to the owner, operator or agent in charge.

(e) Upon presentation of proper credentials and at reasonable times, the director or any authorized representative, employee or agent of the division shall be given access to all records relating to the generation, transportation, storage, treatment or disposal of hazardous wastes in the possession of any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled such waste, the director or an authorized representative, employee or agent shall be furnished with copies of all such records or given the records for the purpose of making copies. If the director, upon inspection, investigation or through other means, observes or learns of a violation or probable violation of this article, he or she is authorized to issue subpoenas and subpoenas duces tecum and to order the attendance and testimony of witnesses and to compel the production of any books, papers, documents, manifests and other physical evidence pertinent to such investigation or inspection.

§22-18-14. Monitoring, analysis and testing.

(a) If the director determines, upon receipt of any information, that: (1) The presence of any hazardous waste at a facility or site at which hazardous waste is, or has been, stored, treated or disposed of; or (2) the release of any such waste from such facility or site may present a substantial hazard to human health or the environment, he or she may issue an order requiring the owner or operator of such facility or site to conduct such monitoring, testing, analysis and reporting with respect to such facility or site as the director deems reasonable to ascertain the nature and extent of such hazard.

(b) In the case of any facility or site not in operation at the time a determination is made under subsection (a) of this section with respect to the facility or site, if the director finds that the owner of such facility or site could not reasonably be expected to have actual knowledge of the presence of hazardous waste at such facility or site and of its potential for release, he or she may issue an order requiring the most recent previous owner or operator of such facility or site who could reasonably be expected to have such actual knowledge to carry out the actions referred to in subsection (a) of this section.

(c) An order under subsection (a) or (b) of this section shall require the person to whom such order is issued to submit to the director within thirty days from the issuance of such order a proposal for carrying out the required monitoring, testing, analysis and reporting. The director may, after providing such person with an opportunity to confer with the director respecting such proposal, require such person to carry out such monitoring, testing, analysis and reporting in accordance with such proposal, and such modifications in such proposal as the director deems reasonable to ascertain the nature and extent of the hazard.

(d) The following duties shall be carried out by the director:

(1) If the director determines that no owner or operator referred to in subsection (a) or (b) of this section is able to conduct monitoring, testing, analysis or reporting satisfactory to the director, if the director deems any such action carried out by an owner or operator to be unsatisfactory or if the director cannot initially determine that there is an owner or operator referred to in subsection (a) or (b) of this section who is able to conduct such monitoring, testing, analysis or reporting, he or she may conduct monitoring, testing or analysis (or any combination thereof) which he or she deems reasonable to ascertain the nature and extent of the hazard associated with the site concerned, or authorize a state or local authority or other person to carry out any such action, and require, by order, the owner or operator referred to in subsection (a) or (b) of this section to reimburse the director or other authority or person for the costs of such activity.

(2) No order may be issued under this subsection requiring reimbursement of the costs of any action carried out by the director which confirms the results of the order issued under subsection (a) or (b) of this section.

(e) If the monitoring, testing, analysis and reporting conducted pursuant to this section indicates that a potential hazard to human health or the environment may or does exist, the director may issue an appropriate order requiring that the hazard or risk of hazard be eliminated.

(f) The director may commence a civil action against any person who fails or refuses to comply with any order issued under this section. Such action shall be brought in the circuit court in which the defendant is located, resides or is doing business. Such court has jurisdiction to require compliance with such order and to assess a civil penalty of not to exceed $5,000 for each day during which such failure or refusal occurs.

§22-18-15. Enforcement orders; hearings.

(a) If the director, upon inspection, investigation or through other means observes, discovers or learns of a violation of the provisions of this article, any permit, order or rules issued or promulgated hereunder, he or she may:

(1) Issue an order stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time. An order under this section includes, but is not limited to, any or all of the following: Orders suspending, revoking or modifying permits, orders requiring a person to take remedial action or cease and desist orders;

(2) Seek an injunction in accordance with subsection (c) of section seventeen of this article;

(3) Institute a civil action in accordance with subsection (c) of section seventeen of this article; or

(4) Request the Attorney General, or the prosecuting attorney of the county in which the alleged violation occurred, to bring a criminal action in accordance with section sixteen of this article.

(b) Any person issued a cease and desist order may file a notice of request for reconsideration with the director not more than seven days from the issuance of such order and shall have a hearing before the director contesting the terms and conditions of such order within ten days of the filing of such notice of a request for reconsideration. The filing of a notice of request for reconsideration does not stay or suspend the execution or enforcement of such cease and desist order.

§22-18-16. Criminal penalties.

(a) Any person who knowingly: (1) Transports any hazardous waste identified or listed under this article to a facility which does not have a permit required by this article, Section 3005 of the Federal Solid Waste Disposal Act, as amended, the laws of any other state which has an authorized hazardous waste program pursuant to Section 3006 of the federal Solid Waste Disposal Act, as amended, or Title I of the federal Marine Protection, Research and Sanctuaries Act; (2) treats, stores or disposes of any such hazardous waste either: (A) Without having obtained a permit required by this article, or by Title I of the federal Marine Protection, Research and Sanctuaries Act, or by Section 3005 or 3006 of the federal Solid Waste Disposal Act, as amended; or (B) in knowing violation of a material condition or requirement of such permit, is guilty of a felony, and, upon conviction thereof, shall be fined not to exceed $50,000 for each day of violation or confined in the penitentiary not less than one nor more than two years, or both such fine and imprisonment or, in the discretion of the court, be confined in jail not more than one year in addition to the above fine.

(b) Any person who knowingly: (1) Makes any false material statement or representation in any application, label, manifest, record, report, permit or other document filed, maintained or used for purposes of compliance with this article; or (2) generates, stores, treats, transports, disposes of or otherwise handles any hazardous waste identified or listed under this article (whether such activity took place before or takes place after the effective date of this article) and who knowingly destroys, alters or conceals any record required to be maintained under rules promulgated by the director pursuant to this article, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not to exceed $25,000, or sentenced to imprisonment for a period not to exceed one year, or both fined and sentenced to imprisonment for each violation.

(c) Any person convicted of a second or subsequent violation of subsections (a) and (b) of this section, is guilty of a felony, and, upon such conviction, shall be confined in the penitentiary not less than one nor more than three years, or fined not more than $50,000 for each day of violation, or both such fine and imprisonment.

(d) Any person who knowingly transports, treats, stores or disposes of any hazardous waste identified or listed pursuant to this article in violation of subsection (a) of this section, or having applied for a permit pursuant to subdivision (13), subsection (a), section six or sections seven and eight of this article, and knowingly either: (1) Fails to include in a permit application any material information required pursuant to this article, or rules promulgated hereunder; or (2) fails to comply with applicable interim status requirements as provided in section eleven of this article and who thereby exhibits an unjustified and inexcusable disregard for human life or the safety of others and he or she thereby places another person in imminent danger of death or serious bodily injury, is guilty of a felony, and, upon conviction thereof, shall be fined not more than $250,000 or imprisoned not less than one year nor more than four years or both such fine and imprisonment.

(e) As used in subsection (d) of this section, the term "serious bodily injury" means:

(1) Bodily injury which involves a substantial risk of death;

(2) Unconsciousness;

(3) Extreme physical pain;

(4) Protracted and obvious disfigurement; or

(5) Protracted loss or impairment of the function of a bodily member, organ or mental faculty.

§22-18-17. Civil penalties and injunctive relief.

(a)(1) Any person who violates any provision of this article, any permit or any rule or order issued pursuant to this article is subject to a civil administrative penalty, to be levied by the secretary, of not more than $7,500 for each day of violation, not to exceed a maximum of $22,500. In assessing a penalty, the secretary shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements as well as any other appropriate factors as may be established by the secretary by rules promulgated pursuant to this article and article three, chapter twenty-nine-a of this code. No assessment may be levied pursuant to this subsection until after the alleged violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, order or statement of permit conditions that was allegedly violated, a concise statement of the facts alleged to constitute the violation, a statement of the amount of the administrative penalty to be imposed and a statement of the alleged violator's right to an informal hearing. The alleged violator has twenty calendar days from receipt of the notice within which to deliver to the secretary a written request for an informal hearing. If no hearing is requested, the notice becomes a final order after the expiration of the twenty-day period. If a hearing is requested, the secretary shall inform the alleged violator of the time and place of the hearing. The secretary may appoint an assessment officer to conduct the informal hearing and then make a written recommendation to the secretary concerning the assessment of a civil administrative penalty. Within thirty days following the informal hearing, the secretary shall issue and furnish to the violator a written decision, and the reasons therefor, concerning the assessment of a civil administrative penalty. Within thirty days after notification of the secretary's decision, the alleged violator may request a formal hearing before the Environmental Quality Board in accordance with the provisions of article one, chapter twenty-two-b of this code. The authority to levy an administrative penalty is in addition to all other enforcement provisions of this article and the payment of any assessment does not affect the availability of any other enforcement provision in connection with the violation for which the assessment is levied: Provided, That no combination of assessments against a violator under this section may exceed $25,000 per day of each violation: Provided, however, That any violation for which the violator has paid a civil administrative penalty assessed under this section may not be the subject of a separate civil penalty action under this article to the extent of the amount of the civil administrative penalty paid. All administrative penalties shall be levied in accordance with rules issued pursuant to subsection (a), section six of this article. The net proceeds of assessments collected pursuant to this subsection shall be deposited in the hazardous waste emergency response fund established pursuant to section three, article nineteen of this chapter.

(2) No assessment levied pursuant to subdivision (1), of this subsection becomes due and payable until the procedures for review of the assessment have been completed.

(b)(1) Any person who violates any provision of this article, any permit or any rule or order issued pursuant to this article is subject to a civil penalty not to exceed $25,000 for each day of violation, which penalty shall be recovered in a civil action either in the circuit court in which the violation occurs or in the circuit court of Kanawha County.

(2) In addition to the powers and authority granted to the secretary by this chapter to enter into consent agreements, settlements and otherwise enforce this chapter, the secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish a mechanism for the administrative resolution of violations set forth in this section through consent order or agreement as an alternative to instituting a civil action.

(c) The secretary may seek an injunction, or may institute a civil action against any person in violation of any provisions of this article or any permit, rule or order issued pursuant to this article. In seeking an injunction, it is not necessary for the secretary to post bond nor to allege or prove at any stage of the proceeding that irreparable damage will occur if the injunction is not issued or that the remedy at law is inadequate. An application for injunctive relief or a civil penalty action under this section may be filed and relief granted notwithstanding the fact that all administrative remedies provided for in this article have not been exhausted or invoked against the person or persons against whom the relief is sought.

(d) Upon request of the secretary, the Attorney General, or the prosecuting attorney of the county in which the violation occurs, shall assist the secretary in any civil action under this section.

(e) In any action brought pursuant to the provisions of this section, the state, or any agency of the state which prevails, may be awarded costs and reasonable attorney's fees.

§22-18-18. Imminent and substantial hazards; orders; penalties; hearings.

(a) Notwithstanding any provision of this article to the contrary, the director, upon receipt of information, or upon observation or discovery that the handling, storage, transportation, treatment or disposal of any hazardous waste may present an imminent and substantial endangerment to public health, safety or the environment, may:

(1) Request the Attorney General or the appropriate prosecuting attorney to commence an action in the circuit court of the county in which the hazardous condition exists to immediately restrain any person contributing to such handling, storage, transportation, treatment or disposal to stop such handling, storage, transportation, treatment or disposal or to take such other action as may be necessary; or

(2) Take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and the environment.

(b) Any person who willfully violates, or fails or refuses to comply with, any order of the director under subsection (a) of this section may, in an action brought in the appropriate circuit court to enforce such orders, be fined not more than $5,000 for each day in which such violation occurs or such failure to comply continues.

§22-18-19. Citizen suits; petitions for rulemaking; intervention.

(a) Any person may commence a civil action on his or her own behalf against any person who is alleged to be in violation of any provision of this article or any condition of a permit issued or rules promulgated hereunder, except that no action may be commenced under this section prior to sixty days after the plaintiff has given notice to the appropriate enforcement, permit issuing or rule-making authority and to the person against whom the action will be commenced, or if the state has commenced and is diligently prosecuting a civil or criminal action pursuant to this article: Provided, That such person may commence a civil action immediately upon notification in the case of an action under subsection (b) of this section. Such actions may be brought in the circuit court in the county in which the alleged violation occurs or in the circuit court of Kanawha County.

(b) Any person may commence a civil action against the appropriate enforcement, permit issuing or rule-making authority where there is alleged a failure of such authority to perform any nondiscretionary duty or act under this article. Such actions may be brought only in the circuit court of Kanawha County.

(c) Any person may petition the appropriate rule-making authority for rule-making on an issue arising under this article. The appropriate rule-making authority, if it believes such issue to merit rule making, may commence any studies and investigations necessary to issue rules. A decision by the appropriate rule-making authority not to pursue rule making must be set forth in writing with substantial reasons for refusing to do so.

(d) Nothing in this article restricts any rights of any person or class of persons under statute or common law.

(e) In issuing any final order in any action brought pursuant to this section any court with jurisdiction may award costs of litigation, including reasonable attorney's fees and expert witnesses fees, to any party whenever the court determines such award to be appropriate.

(f) Any enforcement, permit issuing or rule-making authority may intervene as a matter of right in any suit brought under this section.

(g) Any person may intervene as a matter of right in any civil action or administrative action instituted under this article.

(h) Notwithstanding any provision of this article to the contrary, any person may maintain an action to enjoin a nuisance against any permit holder or other person subject to the provisions of this article and may seek damages in said action, all to the same extent and for all intents and purposes as if this article were not enacted, if such person maintaining such action and seeking such damages would otherwise have standing to maintain such action and be entitled to damages by any other rule of law.

§22-18-20. Appeal to Environmental Quality Board.

Any person aggrieved or adversely affected by an order of the director made and entered in accordance with the provisions of this article, or by the failure or refusal of the director to act within a reasonable time on an application for a permit or by the issuance or denial of or by the terms and conditions of a permit granted by the director under the provisions of this article, may appeal to the environmental quality board, in accordance with the provisions of article one, chapter twenty-two-b of this code.

§22-18-21. Disclosures required in deeds and leases.

(a) The grantor in any deed or other instrument of conveyance or any lessor in any lease or other instrument whereby any real property is let for a period of time shall disclose in such deed, lease or other instrument the fact that such property or the subsurface of such property, (whether or not the grantor or lessor is at the time of such conveyance or lease the owner of such subsurface) was used for the storage, treatment or disposal of hazardous waste. The provisions of this subsection only apply to those grantors or lessors who owned or had an interest in the real property when the same or the subsurface thereof was used for the purpose of storage, treatment or disposal of hazardous waste or who have actual knowledge that such real property or the subsurface thereof was used for such purpose or purposes at any time prior thereto.

(b) Any grantee of real estate or of any substrata underlying said real estate or any lessee for a term who intends to use the real estate conveyed or let or any substrata underlying the same for the purpose of storing, treating or disposing of hazardous waste shall disclose in writing at the time of such conveyance or lease or within thirty days prior thereto such fact to the grantor or lessor of such real estate or substrata. Such disclosure shall describe the proposed location upon said property of the site to be used for the storage, treatment or disposal of hazardous waste, the identity of such waste, the proposed method of storage, treatment or disposal to be used with respect to such waste and any and all other information required by rules of the director.

§22-18-22. Appropriation of funds; Hazardous Waste Management Fund.

(a) The net proceeds of all fines, penalties and forfeitures collected under this article shall be appropriated as directed by section five, article XII of the Constitution of West Virginia. For the purposes of this section, the net proceeds of the fines, penalties and forfeitures are considered the proceeds remaining after deducting therefrom those sums appropriated by the Legislature for defraying the cost of administering this article. All permit application fees collected under this article shall be paid into the State Treasury into a special fund designated the Hazardous Waste Management Fund. In making the appropriation for defraying the cost of administering this article, the Legislature shall first take into account the sums included in that special fund prior to deducting additional sums as may be needed from the fines, penalties and forfeitures collected pursuant to this article.

(b) Effective on July 1, 2003, there is imposed an annual certification fee for facilities that manage hazardous waste, as defined by the federal Resource Conservation and Recovery Act, as amended. The secretary shall propose a rule for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to establish the certification fee. The rule shall be a product of a negotiated rule-making process with the facilities subject to the rule. The rule shall, at a minimum, establish different fee rates for facilities based on criteria established in the rule. The total amount of fees generated raise no more funds than are necessary and adequate to meet the matching requirements for all federal grants which support the hazardous waste management program, but shall not exceed $700,000 per year.

(c) The revenues collected from the annual certification fee shall be deposited in the State Treasury to the credit of the Hazardous Waste Management Fee Fund, which is continued. Moneys of the fund, together with any interest or other return earned on the fund, shall be expended to meet the matching requirements of federal grant programs which support the hazardous waste management program. Expenditures from the fund are for the purposes set forth in this article and are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon the fulfillment of the provisions set forth in §5A-2-1 et seq. of this code. Amounts collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts by appropriation of the Legislature.

(d) The fee provided in subsection (b) of this section and the fund established in subsection (c) of this section shall terminate on June 30, 2025. The department shall, by December 31 of each year, report to the Joint Committee on Government and Finance regarding moneys collected into the Hazardous Waste Management Fee Fund and expenditures by the agency, including any federal matching moneys received and providing an accounting on the collection of the fee by type of permit activity, funds being expended and current and future projected balances of the fund.

§22-18-23. State program to be consistent with and equivalent to federal program.

The program for the management of hazardous waste pursuant to this article shall be equivalent to and consistent with the federal program established pursuant to Subtitle C of the federal Solid Waste Disposal Act, as amended.

§22-18-24. Duplication of enforcement prohibited.

No enforcement proceeding brought pursuant to this article may be duplicated by an enforcement proceeding subsequently commenced under some other article of this code with respect to the same transaction or event unless such subsequent proceeding involves the violation of a permit or permitting requirement of such other article.

§22-18-25. Financial responsibility provisions.

(1) Financial responsibility required by subdivision (4), subsection (a), section six of this article may be established in accordance with rules promulgated by the director by any one, or any combination, of the following: Insurance, guarantee, surety bond, letter of credit or qualification as a self-insurer. In promulgating requirements under this section, the director is authorized to specify policy or other contractual terms, conditions or defenses which are necessary or are unacceptable in establishing such evidence of financial responsibility in order to effectuate the purposes of this article.

(2) In any case where the owner or operator is in bankruptcy reorganization, or arrangement pursuant to the federal bankruptcy code or where (with reasonable diligence) jurisdiction in any state court or any federal court cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the guarantor providing such evidence of financial responsibility. In the case of any action pursuant to this subsection, such guarantor is entitled to invoke all rights and defenses which would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator.

(3) The total liability of any guarantor is limited to the aggregate amount which the guarantor has provided as evidence of financial responsibility to the owner or operator under this article. Nothing in this subsection limits any other state or federal statutory contractual or common law liability of a guarantor to its owner or operator including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim. Nothing in this subsection diminishes the liability of any person under section 107 or 111 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 or other applicable law.

(4) For the purposes of this section, the term "guarantor" means any person other than the owner or operator who provides evidence of financial responsibility for an owner or operator under this section.

§22-19-1. Findings; purpose.

The Legislature recognizes that large quantities of hazardous waste are generated within the state, and that emergency situations involving hazardous waste can and will arise which may present a hazard to human health, safety, or the environment. The Legislature also recognizes that some hazardous waste has been stored, treated or disposed of at sites in the state in a manner insufficient to protect human health, safety or the environment. The Legislature further recognizes that the federal government has enacted the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, which provides for federal assistance to respond to hazardous substance emergencies and to remove and remedy the threat of damage to the public health or welfare or to the environment, and declares that West Virginia desires to produce revenue for matching the federal assistance provided under the federal acts. Therefore, the Legislature hereby creates a hazardous waste emergency fund to provide state funds for responding to hazardous waste emergencies, responding to releases of hazardous substances into the environment, matching federal financial assistance for restoring hazardous waste sites and other costs or expenses incurred in the administration of this article.

§22-19-2. Definitions.

As used in this article, unless the context clearly requires a different meaning:

(1) "Cleanup" means such actions as may be necessary to monitor, assess and evaluate the threat of release of hazardous waste or hazardous substances, the containment, collection, control, identification, treatment, dispersal, removal or disposal of hazardous waste or other such actions as may be necessary to respond to hazardous waste or hazardous substance emergencies or to prevent, minimize or mitigate damage to the public health, safety, welfare or to the environment, and includes, where necessary, replacement of existing, or provision of alternative, drinking water supplies that have been contaminated with hazardous waste as a result of an emergency;

(2) "Cleanup costs" means all costs incurred by the director, or with the approval of the director, by any state agency or person participating in the cleanup of a hazardous waste or hazardous substance emergency or remedial action and also includes responding to emergencies that may contain petroleum products: Provided, That cleanup costs do not include expenditures for remediation of or responding to releases from underground storage tanks;

(3) "Generator" means any person, corporation, partnership, association or other legal entity, by site location, whose act or process produces hazardous waste as identified or listed by the director in rules promulgated pursuant to section six, article eighteen of this chapter, in an amount greater than five thousand kilograms per year.

All other terms have the meaning as prescribed in the rules promulgated by the director pursuant to the provisions of section six, article eighteen of this chapter.

§22-19-3. Hazardous Waste Emergency Response Fund; components of fund.

(a) The special fund designated the Hazardous Waste Emergency Response Fund, hereinafter referred to as "the fund", shall be continued in the state Treasury.

(b) All generator fee assessments, any interest or surcharge assessed and collected by the director, interest accruing on investments and deposits of the fund, and any other moneys designated shall be paid into the fund. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending June 30, 2000, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. Amounts collected which are found from time to time to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.

§22-19-4. Fee assessments; tonnage fees; due dates of payments; interest on unpaid fees.

(a) Each generator of hazardous waste within this state shall pay an annual fee based upon the amount of hazardous waste generated as reported to the director by the generator on a fee assessment form prescribed by the director submitted pursuant to article eighteen of this chapter. The director shall establish a fee schedule according to the following: Full assessment for generated hazardous waste disposed or treated off-site; ninety percent of the full assessment for generated hazardous waste either treated or disposed on-site; seventy-five percent of the full assessment for generated hazardous waste treated off-site so that such waste is rendered nonhazardous; and twenty-five percent of the full assessment for generated hazardous waste treated on-site so that such waste is rendered nonhazardous: Provided, That the generator fee assessment does not apply to the following: (1) Sludge from any publicly owned treatment works in the state; (2) any discharge to waters of the state of hazardous waste pursuant to a valid water pollution control permit issued under federal or state law; (3) any hazardous wastes beneficially used or reused or legitimately recycled or reclaimed; (4) hazardous wastes which are created or retrieved pursuant to an emergency or remedial action plan; (5) hazardous wastes whose sole characteristic as a hazardous waste is based on corrosivity and which are subjected to on-site elementary neutralization in containers or tanks; (6) fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels; (7) solid waste from the extraction, beneficiation, and processing of ores and minerals, including coal, phosphate rock and overburden from the mining of uranium ore; (8) cement kiln dust waste; (9) drilling fluids, produced waters, and other wastes associated with the exploration, development or production of crude oil, natural gas, or geo-thermal energy; and (10) any other material that is exempted or excluded from hazardous waste regulation pursuant to the federal Resource Conservation and Recovery Act and the rules promulgated thereunder, including, but not limited to, the exemptions and exclusions set forth in 40 CFR 261.4 and 261.6, or the state hazardous waste management act, article eighteen of this chapter, and the rules promulgated thereunder.

(b) Each generator of hazardous waste within the state subject to a fee assessment under subsection (a) of this section shall pay a fee based on its annual tonnage of generated hazardous waste. Any unexpended balance of such collected fees shall not be transferred to the General Revenue Fund, but shall remain in the fund. Whenever the balance in the fund is less than $1 million , the director is authorized to impose a fee assessment as provided in this article, but in no event shall the fees established be set to produce revenue exceeding $500,000 in any year.

(c) Generator fee assessments are due and payable to the Division of Environmental Protection on January 15, of each year. Such payments shall be accompanied by information in such form as the director may prescribe.

(d) If the fees or any portion thereof are not paid by the date prescribed, interest accrues upon the unpaid amount at the rate of ten percent per annum from the date due until payment is actually made. Such interest payments shall be deposited in the fund. If any generator fails to pay the fees imposed before April 1 of the year in which they are due, there is imposed in addition to the fee and interest determined to be owed a surcharge equivalent to the total amount of the fee which shall also be collected and deposited in the fund.

§22-19-5. Director's responsibilities; fee schedules; authorized expenditures; other powers of director; authorizing civil actions; assistance of Attorney General or prosecuting attorney.

(a) The director shall collect all fees assessed pursuant to this article and administer the fund. The fee schedule shall be published in the State Register by August 1, of each year. Each generator who filed the fee assessment form prescribed by the director shall be notified and provided with a copy of the fee schedule by certified mail. In the event the fee schedule is not published by August 1, the date prescribed for payment in section four of this article shall be advanced by the same number of days that the publication of the fee schedule is delayed. The interest and surcharge provisions of section four of this article shall be similarly advanced.

(b) The director is authorized to enter into agreements and contracts and to expend the moneys in the fund for the following purposes:

(1) Responding to hazardous waste emergencies and releases of hazardous substances when, based on readily available information, the director determines that immediate action may prevent or mitigate significant risk of harm to human health, safety or the environment from hazardous wastes or releases of hazardous substances in situations for which no federal funds are immediately available for such response cleanup or containment: Provided, That the director shall apply for and diligently pursue available federal funds for such emergencies at the earliest possible time;

(2) Reimbursing any person for reasonable cleanup costs incurred with the authorization of the director in responding to a hazardous waste emergency or release of hazardous substances pursuant to authorization of the director;

(3) Financing the nonfederal share of the cleanup and site reclamation activities pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 as well as future operation and maintenance costs for these sites; and

(4) Financing any and all preparations necessary for responding to hazardous waste and hazardous substance activities and emergencies within the state, including, but not limited to, the purchase or lease of hazardous waste emergency response equipment.

(c) Prior to making expenditures from the fund pursuant to subdivision (1), (2) or (3), subsection (b) of this section, the director will make reasonable efforts to secure agreements to pay the costs of cleanup and remedial actions from owners or operators of sites or other responsible persons.

(d) The director is authorized to promulgate and revise rules in compliance with chapter twenty-nine-a of this code to implement and effectuate the powers, duties and responsibilities vested in him or her under this article. Prior to the assessment of any fees under this article, the director shall promulgate rules which account for the mixture of hazardous and nonhazardous constituents in the hazardous waste which is generated. The director may not assess a fee on the nonhazardous portion, including, but not limited to, the weight of water.

(e) The director is authorized to recover through civil action or cooperative agreements with responsible persons the full amount of any funds expended for purposes enumerated in subdivision (1), (2) or (3), subsection (b) of this section. All moneys expended from the fund which are so recovered shall be deposited in the fund. Any civil action instituted pursuant to this subsection may be brought in either Kanawha County or the county in which the hazardous waste emergency occurs or the county in which remedial action is taken.

(f) The director is authorized to institute a civil action against any generator for failure to pay any fee assessed pursuant to this article. Any action instituted against a generator pursuant to this subsection may be brought in either Kanawha County or the county in which the generator does business. The generator shall pay all attorney fees and costs of such action if the director prevails.

(g) Upon request by the director, the Attorney General or prosecuting attorney for the county in which an action was brought shall assist the director in any civil action instituted pursuant to this section and any proceedings relating thereto.

(h) The director is authorized to enter into contracts or cooperative agreements with the federal government to secure to the state the benefits of funding for action taken pursuant to the requirements of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended by the Superfund Amendments and Reauthorization Act of 1986.

(i) The director is authorized to accept gifts, donations, contributions, bequests or devises of money, security or property for deposit in the fund.

(j) The director is authorized to invest the fund to earn a reasonable rate of return on the unexpended balance.

§22-19-6. State hazardous waste contingency plan.

The director shall promulgate rules in compliance with chapter twenty-nine-a of this code, establishing a state hazardous waste contingency plan which shall set forth procedures and standards for responding to hazardous waste emergencies, releases of hazardous substances, for conducting remedial cleanup and maintenance of hazardous waste sites and for making expenditures from the fund after the date of promulgation of the plan. The plan shall include:

(a) Methods for discovering, reporting and investigating sites at which hazardous waste or hazardous substances may present significant risk of harm to the public health and safety or to the environment;

(b) Methods and criteria for establishing priority responses and for determining the appropriate extent of cleanup, containment and other measures authorized by this article;

(c) Appropriate roles for governmental, interstate and nongovernmental entities in effectuating the plan;

(d) Methods for identifying, procuring, maintaining, and storing hazardous waste response equipment and supplies; and

(e) Methods to identify the most appropriate and cost-effective emergency and remedial actions in view of the relative risk or danger presented by each case or event.

§22-20-1. Appointment of environmental advocate; powers and duties; salary.

The director of the Division of Environmental Protection shall appoint a person to serve as the environmental advocate within the Division of Environmental Protection, and shall adopt and promulgate rules in accordance with the provisions of article three, chapter twenty-nine-a of this code governing and controlling the qualifications, powers and duties of the person to be appointed to the position of environmental advocate. The environmental advocate shall serve at the will and pleasure of the director, who shall also set the salary of the environmental advocate. All funding for the office of environmental advocate shall be from existing funds of the Division of Environmental Protection. The director shall provide an office and secretarial and support staff as needed.

§22-20-2.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§22-21-1. Declaration of public policy; legislative findings.

(a) The Legislature hereby declares and finds that the venting of coalbed methane from mine areas and degasification of coal seams has been and continues to be approved by the state for the purpose of ensuring the safe recovery of coal; that the value of coal is far greater than the value of coalbed methane and any development of the coalbed methane should be undertaken in such a way as to protect and preserve coal for future safe mining and maximum recovery of the coal; that subject to the above declarations and findings, commercial recovery and marketing of coalbed methane should in some cases be facilitated because the energy needs of this state and the United States indicate that the fullest practical recovery of both coal and coalbed methane should be encouraged; that the Energy Policy Act of 1992 was enacted in part to encourage coalbed methane development and the State of West Virginia should enact legislation which carries out the purposes of said act; that in order to encourage and ensure the fullest practical recovery of coal and coalbed methane in this state and to further ensure the safe recovery of both natural resources, it is in the public interest to enact this article authorizing coalbed methane well permits, regulating the design of coalbed methane wells and recovery techniques, authorizing coalbed methane well units and pooling of interests therein to provide all coalbed methane operators and coalbed methane owners with an opportunity to recover their just and equitable share of production.

(b) It is hereby declared to be the public policy of this state and in the public interest to:

(1) Preserve coal seams for future safe mining; facilitate the expeditious, safe evacuation of coalbed methane from the coalbeds of this state, and maintain the ability and absolute right of coal operators at all times to vent coalbed methane from mine areas;

(2) Foster, encourage and promote the commercial development of this state's coalbed methane by establishing procedures for issuing permits and forming drilling units for coalbed methane wells without adversely affecting the safety of mining or the mineability of coal seams;

(3) Safeguard, protect and enforce the correlative rights of coalbed methane well operators and coalbed methane owners in a pool of coalbed methane to the end that each such operator and owner may obtain his or her just and equitable share of production from coalbed methane recovered and marketed under this article;

(4) Safeguard and protect the mineability of coal during the removal of coalbed methane, as permitted under this article;

(5) Create a state permitting procedure and authority to provide for and facilitate coalbed methane development as encouraged by the Energy Policy Act of 1992; and

(6) Seek the deletion of the State of West Virginia from the list of affected states by the secretary of the United States department of the interior as provided for in the Energy Policy Act of 1992.

§22-21-2. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(a) "Review board" means the West Virginia coalbed methane review board which shall be comprised of the members of the West Virginia shallow gas well review board provided for in article eight, chapter twenty-two-c of this code, the state geologist, a representative of the United Mine Workers of America, an employee of the gas industry, and the director of the office of miners' health, safety and training, and the chairman of the review board shall be the chairman of the West Virginia shallow gas review board;

(b) "Coalbed" or "coal seam" means a seam of coal, whether workable or unworkable, and the noncoal roof and floor of said seam of coal;

(c) "Coalbed methane" means gas which can be produced from a coal seam, the rock or other strata in communication with a coal seam, a mined-out area or a gob well;

(d) "Coalbed methane owner" means any owner of coalbed methane;

(e) "Coalbed methane well" means any hole or well sunk, drilled, bored or dug into the earth for the production of coalbed methane for consumption or sale, including a gob well. The term "well" shall mean a coalbed methane well unless the context indicates otherwise. The term "coalbed methane well" does not include any shaft, hole or well sunk, drilled, bored or dug into the earth for core drilling, production of coal or water, venting gas from a mine area, or degasification of a coal seam, or any coalbed methane well extending from the surface into, but not below, a coal seam being mined after such well or its horizontal extension has been plugged in accordance with section twenty-three of this article;

(f) "Coalbed methane well operator" or "well operator" means any person who has the right to operate or does operate a coalbed methane well;

(g) "Coal operator" means any person who proposes to or does operate a coal mine;

(h) "Coal owner" means any person who owns or leases a coal seam;

(i) "Chief" means the chief of the office of oil and gas of the Division of Environmental Protection provided for in section eight, article one of this chapter;

(j)"Director" means the director of the Division of Environmental Protection;

(k) "Division" means the Division of Environmental Protection;

(l) "Gob well" means a well drilled or vent hole converted to a well pursuant to this article which produces or is capable of producing coalbed methane or other natural gas from a distressed zone created above and below a mined-out coal seam by any prior full seam extraction of the coal;

(m) "Mine" or "mine areas," including the sub-definitions under "mine areas," shall have the same definitions as are provided in section two, article one, chapter twenty-two-a of this code;

(n) "Office" means office of oil and gas provided for in section seven, article one of this chapter;

(o) "Person" means any natural person, corporation, firm, partnership, partnership association, venture, receiver, trustee, executor, administrator, guardian, fiduciary, other representative of any kind, any recognized legal entity, or political subdivision or agency thereof;

(p) "Stimulate" means any action taken to increase the natural flow of coalbed methane or the inherent productivity of a coalbed methane well, including, but not limited to, fracturing, shooting, acidizing or water flooding, but excluding cleaning out, bailing or workover operations;

(q) "Waste" means: (i) Physical waste as the term is generally understood in the gas industry and as provided for in article six of this chapter, but giving special consideration to coal mining operations and the safe recovery of coal; (ii) the locating, drilling, equipping, operating, producing or transporting coalbed methane in a manner that causes or tends to cause a substantial reduction in the quantity of coalbed methane recoverable from a pool under prudent and proper operations, or that causes or tends to cause a substantial or unnecessary or excessive surface loss of coalbed methane; (iii) the drilling of more wells than are reasonably required to recover efficiently and economically the maximum amount of coalbed methane from a pool; or (iv) substantially inefficient, excessive or improper use, or the substantially unnecessary dissipation of reservoir pressure. Waste does not include coalbed methane vented or released from any mine area, the degasification of a coal seam for the purpose of mining coal, the plugging of coalbed methane wells for the purpose of mining coal, coalbed methane vented or flared from a coalbed methane well, after completion, for the purpose of evaluating its economic viability, or the conversion of coalbed methane wells to vent holes for the purpose of mining coal;

(r) "Workable coalbed" or "workable coal seam" means any seam of coal twenty inches or more in thickness, or any seam of less thickness which is being commercially mined or can be shown to be capable of being commercially mined;

(s) "Secretary" means the Secretary of the Department of Environmental Protection.

§22-21-3. Application of article; exclusions; application of chapter twenty-two-b to coalbed methane wells.

(a) The provisions of this article apply to: (1) All lands in this state under which a coalbed is located, including any lands owned or administered by the state or any agency or subdivision thereof; and (2) any coalbed methane well.

(b) This article does not apply to or affect: (1) Any well otherwise permitted, approved or regulated under articles six, seven, eight, nine or ten of this chapter or article eight, chapter twenty-two-c of this code; (2) any ventilation fan, vent hole, mining apparatus, or other facility utilized solely for the purpose of venting any mine or mine area; or (3) the ventilation of any mine or mine area or degasification of any coal seam for the mining of coal.

(c) This article does not apply to or affect subsurface boreholes drilled from the mine face of an underground mine, except that the provisions of sections fifteen, sixteen, seventeen, eighteen and nineteen shall apply.

(d) To the extent that coalbed methane wells are similar to wells, as defined in section one, article six of this chapter, and the production of coalbed methane is similar to the production of natural gas, coalbed methane wells shall be treated as wells and coalbed methane treated as natural gas and subject to the following sections of article six of this chapter:

(1) The provisions of section three pertaining to the findings and orders of inspectors concerning violations, determination of reasonable time for abatement, extensions of time for abatement, special inspections, notice of findings and orders;

(2) The provisions of section four providing for the review of findings and orders by the chief, special inspection, annulment, revision of order and notice;

(3) The provisions of section five providing for the requirements of findings, orders and notices; posting of findings and orders; and judicial review of final orders of the chief;

(4) The provisions of section twenty-one providing for protective devices--installation of freshwater casings;

(5) The provisions of section twenty-two providing for a well log to be filed, contents, and authority to promulgate regulations. In addition to the requirements of such section, the operator shall certify that the well was drilled and completed as shown on the well plat required for a coalbed methane well, or in the alternative, file a revised well plat showing the actual location of the well and the coal seams in which the well is completed for production. Such log and certificate shall be served on all coal owners and operators who must be named in the permit application under section six of this article;

(6) The provisions of section twenty-eight providing for supervision by the chief over drilling and reclamation operations, complaints, hearings and appeals;

(7) The provisions of section twenty-nine providing for special reclamation funds and fees;

(8) The provisions of section thirty providing for reclamation requirements;

(9) The provisions of section thirty-one providing for preventing waste of gas, plan of operation required for wasting gas in process of producing oil and rejection thereof;

(10) The provisions of section thirty-two providing for the right of adjacent owner or operator to prevent waste of gas and recovery of costs;

(11) The provisions of section thirty-three providing for restraining waste;

(12) The provisions of section thirty-four providing for offenses and penalties;

(13) The provisions of section thirty-five providing for civil action for contamination or deprivation of freshwater source or supply and presumption;

(14) The provisions of section thirty-six providing for declaration of notice by owners and lessees of coal seams and setting out the form of such declaration; and

(15) The provisions of section thirty-nine providing for injunctive relief.

In addition to the foregoing and subject to the same qualifications, the provisions of article ten of this chapter shall apply to coalbed methane wells. Any well which is abandoned or presumed to be abandoned under the provisions of this article shall be treated as an abandoned well under said article ten. In addition, the provisions of article seven of this chapter shall apply to permits issued pursuant to this article.

§22-21-4. Chief; powers and duties generally.

(a) The chief of the office of oil and gas shall have the duty of issuing permits and otherwise supervising the execution and enforcement of the provisions of this article, all subject to the review and approval of the director.

(b) The chief of the office of oil and gas is authorized to enact rules necessary to effectuate the purposes of this article, subject to the review and approval by the director.

(c) In addition to all other powers and duties conferred upon the chief, the chief shall have the power and duty to:

(1) Perform all duties which are expressly imposed upon him by the provisions of this article, as well as duties assigned to him or her by the director;

(2) Perform all duties as the permit issuing authority for the state in all matters pertaining to the exploration, development, production and recovery of coalbed methane in accordance with the provisions of this article;

(3) Perform such acts as may be necessary or appropriate to secure to this state the benefits of federal legislation by establishing programs relating to the exploration, development, production and recovery of coalbed methane, which programs are assumable by the state;

(4) Visit and inspect any coalbed methane well or well site and call for the assistance of any oil and gas inspectors or other employees of the office of oil and gas in the enforcement of the provisions of this article;

(5) Collect the permit application fee for the drilling of a coalbed methane well;

(6) Collect the permit application fee for a drilling unit.

§22-21-5. Duties of the Coalbed Methane Review Board; meetings; notice, powers and duties generally.

(a) The board shall meet and hold conferences and hearings at times and places designated by the chairman. The chairman may call a meeting of the board at any time. The chairman shall call a meeting of the board: (1) Upon receipt from the chief of a completed application for a permit to establish one or more coalbed methane gas drilling units pursuant to this article; (2) upon receipt from the chief of a request pursuant to section seven of this article or comments or objections pursuant to sections ten and eleven of this article; or (3) within twenty days upon the written request by another member of the board. Notice of all meetings shall be given to each member of the board by the chairman at least ten days in advance thereof, unless otherwise agreed by the members.

(b) At least ten days prior to every meeting of the board called pursuant to the provisions of this section, the chairman shall also notify the applicant, all persons to whom copies of the application were required to be mailed pursuant to the provisions of section nine of this article and all persons who filed written protests or objections with the board in accordance with the provisions of section ten or eleven of this article.

(c) A majority of the members of the board constitute a quorum for the transaction of any business. A majority of the members of the board is required to determine any issue brought before it.

(d) The board shall execute and carry out, administer and enforce the provisions of this article in the manner provided herein. Subject to the provisions of section three of this article, the board has jurisdiction and authority over all persons and property necessary therefor: Provided, That the provisions of this article do not grant to the board authority or power to fix prices of coalbed methane gas.

(e) Within eighteen months of the effective date of this article, the board shall initiate rule-making proceedings to investigate the feasibility of establishing blanket bonds for financial security in addition to the provisions for bonds for financial security under section thirteen of this article.

(f) The board may:

(1) Take evidence and issue orders concerning applications for drilling permits and coalbed methane gas drilling units in accordance with the provisions of this article;

(2) Promulgate, pursuant to the provisions of chapter twenty-nine-a of this code, and enforce reasonable rules necessary to govern the practice and procedure before the board;

(3) Propose legislative rules pursuant to the provisions of chapter twenty-nine-a of this code necessary to implement the powers and duties provided the board under this article, notwithstanding the provisions of subsection (b), section four of this article;

(4) Make relevant investigations of records and facilities it considers proper; and

(5) Issue subpoenas for the attendance of and sworn testimony by witnesses and subpoenas duces tecum for the production of any books, records, maps, charts, diagrams and other pertinent documents in its own name or at the request of any party pursuant to article five, chapter twenty-nine-a of this code.

§22-21-6. Permit required for coalbed methane well; permit fee; application; soil erosion control plan; penalties.

(a) It is unlawful for any person to commence, operate, deepen or stimulate any coalbed methane well, to conduct any horizontal drilling of a well commenced from the surface for the purpose of commercial production of coalbed methane or to convert any existing well, vent hole or other hole to a coalbed methane well, including in any case site preparation work which involves any disturbance of land, without first securing from the chief a permit pursuant to this article.

(b) Every permit application filed under this section shall be verified and shall contain the following:

(1) The names and addresses of: (i) The well operator; (ii) the agent required to be designated under subsection (e) of this section; and (iii) every person or entity whom the applicant must notify under section nine of this article;

(2) The name and address of each coal operator of record and each coal owner of record or providing a record declaration of notice pursuant to section thirty-six, article six of this chapter of any coal seam which is: (i) To be penetrated by a proposed well; (ii) within seven hundred fifty horizontal feet of any portion of the proposed well bore; or (iii) within one hundred vertical feet of the designated coal seams to be stimulated in the proposed well, except that in the case of an application to convert a ventilation hole to a gob well, the name and address only of such owner or operator of the seams to be penetrated by a proposed well shall be necessary;

(3) The well name or such other identification as the chief may require;

(4) The approximate depth to which the well is to be drilled, deepened or converted, the coal seams (stating the depth and thickness of each seam) in which the well will be completed for production and any other coal seams (including the depth and thickness of each seam) which will be penetrated by the well;

(5) A description of any means to be used to stimulate the well;

(6) If the proposed well will require casing or tubing to be set, the entire casing program for the well, including the size of each string of pipe, the starting point and depth to which each string is to be set and the extent to which each such string is to be cemented;

(7) If the proposed operation is to convert an existing well, as defined in section one, article six of this chapter, or to convert a vertical ventilation hole to a coalbed methane well, all information required by this section, all formations from which production is anticipated and any plans to plug any portion of the well;

(8) Except for a gob well or vent hole proposed to be converted to a well, if the proposed coalbed methane well will be completed in some but not all coal seams for production, a plan and design for the well which will protect all workable coal seams which will be penetrated by the well;

(9) If the proposed operations will include horizontal drilling of a well commenced on the surface, a description of such operations, including both the vertical and horizontal alignment and extent of the well from the surface to total depth;

(10) Any other relevant information which the chief may require by rule.

(c) Each application for a coalbed methane well permit shall be accompanied by the following:

(1) The applicable bond prescribed by section eight of this article;

(2) A permit application fee of $650;

(3) The erosion and sediment control plan required under subsection (d) of this section;

(4) The consent and agreement of the coal owner as required by section seven of this article and, if applicable, section twenty of this article;

(5) A plat prepared by a licensed land surveyor or registered engineer showing the district and county in which the drill site is located, the name of the surface owner of the drill site tract, the acreage of the same, the names of the surface owners of adjacent tracts, the names of all coal owners underlying the drill site tract, the proposed or actual location of the well determined by a survey, the courses and distances of such location from two permanent points or landmarks on said tract, the location of any other existing or permitted coalbed methane well or any oil or gas well located within two thousand five hundred feet of the drill site, the number to be given the coalbed methane well, the proposed date for completion of drilling, the proposed date for any stimulation of the well and, if horizontal drilling of a well commenced on the surface is proposed, the vertical and horizontal alignment and extent of the well;

(6) A certificate by the applicant that the notice requirements of section nine of this article have been satisfied by the applicant. Such certification may be by affidavit of personal service, or the return receipt card, or other postal receipt, for certified mailing.

(d) An erosion and sediment control plan shall accompany each application for a permit. Such plan shall contain methods of stabilization and drainage, including a map of the project area indicating the amount of acreage disturbed. The erosion and sediment control plan shall meet the minimum requirements of the West Virginia erosion and sediment control manual as adopted and, from time to time, amended by the Office of Oil and Gas in consultation with the several soil conservation districts pursuant to the control program established in this state through Section 208 of the federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §1288. The erosion and sediment control plan shall become part of the terms and conditions of a permit and the provisions of the plan shall be carried out where applicable in operations under the permit. The erosion and sediment control plan shall set out the proposed method of reclamation which shall comply with the requirements of section thirty, article six of this chapter.

(e) The well operator named in such application shall designate the name and address of an agent for such operator who shall be the attorney-in-fact for the operator and who shall be a resident of the State of West Virginia, upon whom notices, orders or other communications issued pursuant to this article may be served, and upon whom process may be served. Every well operator required to designate an agent under this section shall within five days after the termination of such designation notify the office of such termination and designate a new agent.

(f) The well owner or operator shall install the permit number as issued by the chief in a legible and permanent manner to the well upon completion of any permitted work. The dimensions, specifications and manner of installation shall be in accordance with the rules of the chief.

(g) The chief shall deny the issuance of a permit if he or she determines that the applicant has committed a substantial violation of a previously issued permit, including the erosion and sediment control plan, or a substantial violation of one or more of the rules promulgated hereunder, and has failed to abate or seek review of the violation. In the event that the chief finds that a substantial violation has occurred with respect to existing operations and that the operator has failed to abate or seek review of the violation in the time prescribed, he or she may suspend the permit on which said violation exists, after which suspension the operator shall forthwith cease all work being conducted under the permit until the chief reinstates the permit, at which time the work may be continued. The chief shall make written findings of any such determination made by him or her and may enforce the same in the circuit courts of this state and the operator may appeal such suspension pursuant to section twenty-five of this article. The chief shall make a written finding of any such determination.

(h) Any person who violates this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or be confined in jail not more than one year, or both fined and confined.

§22-21-7. Consent and agreement of coal owner or operator.

(a) No permit shall be issued for a coalbed methane well unless and until the applicant has obtained and filed with the chief a consent and agreement from each owner and each operator of any workable coal seam in West Virginia twenty-eight inches or more in thickness which is within seven hundred fifty horizontal feet of the proposed well bore and: (i) Which coal seam the applicant proposes to stimulate; or (ii) which coal seam is within one hundred vertical feet above or below a coal seam which the applicant proposes to stimulate. The requirement for consent and agreement contained in this section shall not be considered to impair, abridge or affect any contractual rights or objections arising out of a contract or lease which provides for the development of coalbed methane and stimulation of wells between the applicant and any coal owner or operator and the existence of any such contract or lease shall constitute a waiver of the requirement to file an additional signed consent and agreement. Such consent and agreement must provide: (i) That such coal owner or operator has been provided with a copy of the application for permit as required by section six of this article and with a copy of all plats and documents which must accompany the application; and (ii) that such coal owner or operator consents and agrees to the stimulation of the coal seam as described in such application.

(b) In the absence of the applicant submitting the consent described in subsection (a) above, the applicant may submit a request for hearing before the board accompanied by an affidavit which shall include the following:

(1) A statement that a coal owner or operator as described in subsection (a) of this section has refused to provide written authorization to stimulate the well;

(2) A statement detailing the efforts undertaken to obtain such authorization;

(3) A statement setting out any known reasons for the authorization not being provided; and

(4) A statement or other information in addition to that provided pursuant to subdivision (5), subsection (b), section six of this article necessary to provide prima facie evidence that the proposed method of stimulation will not render the coal seam unworkable, or considering all factors, impair mine safety.

(c) Upon receipt of a request and affidavit as set forth in subsection (b) of this section, the chief shall forward the application to the board to consider the proposed stimulation, or if other objections or notices are filed requiring a hearing before the board, the request hereunder may be included for consideration by the board along with other matters related to the application.

(d) If the authorization of a coal owner or operator has been withheld based upon reasons related to safety, the chief shall, concurrent with submission of the request and affidavit to the board, submit a copy of the application to the director of the office of miners' health, safety and training who shall review the application as to issues of mine safety and within thirty days submit recommendations to the board.

§22-21-8. Performance bonds; corporate surety or other security.

(a) No permit shall be issued pursuant to this article unless a bond is or has been furnished as provided in this section.

(b) A separate bond may be furnished for a particular coalbed methane well in the sum of $5,000, payable to the State of West Virginia, conditioned on full compliance with all laws and rules relating to the drilling, operation and stimulation of such wells, to the plugging, abandonment and reclamation thereof, and for furnishing such reports and information as may be required by the chief.

(c) When an operator makes or has made application for permits to drill, operate or stimulate more than one coalbed methane well or a combination of coalbed methane wells and wells regulated under article one, chapter twenty-two-b of this code, the operator may in lieu of furnishing a separate bond furnish a blanket bond in the sum of $5,000, payable to the State of West Virginia, and conditioned as stated in subsection (b) of this section.

(d) All bonds submitted hereunder shall have a corporate bonding or surety company authorized to do business in the State of West Virginia as surety thereon, or in lieu of a corporate surety, the operator may elect to deposit with the chief cash, collateral securities or any combination thereof as provided in subsection (d), section twenty-six, article six of this chapter.

(e) For purposes of bonding requirements, a coalbed methane well shall be treated as a well, as defined and regulated in article one, chapter twenty-two-b of this code, and the provisions of subsections (e), (g), (h), (i) and (j) of section twenty-six thereof shall apply.

§22-21-9. Notice to owners.

(a) Prior to filing an application for a permit for a coalbed methane well under this article, the applicant shall deliver by personal service or by certified mail, return receipt requested, copies of the application, well plat and erosion and sediment control plan to the following:

(1) The owners of record of the surface of the tract on which the coalbed methane well is to be located;

(2) The owners of record of the surface of any tract which is to be utilized for roads or other land disturbance;

(3) Each coal owner and each coal operator (i) from whom a consent and agreement provided for in section seven of this article is required, or (ii) whose coal seam will be penetrated by the proposed coalbed methane well or is within seven hundred fifty feet of any portion of the well bore; and

(4) Each owner and lessee of record and each operator of natural gas surrounding the well bore and existing in formations above the top of the uppermost member of the "Onondaga Group" or at a depth less than six thousand feet, whichever is shallower. Notices to gas operators shall be sufficient if served upon the agent of record with the office of oil and gas.

(b) If more than three tenants in common or other coowners of interests described in subsection (a) of this section hold interests in such lands, the applicant may serve the documents required upon the person described in the records of the sheriff required to be maintained pursuant to section eight, article one, chapter eleven-a of this code; provided, that all owners and operators occupying or operating on the tracts where the well work is proposed to be located at the filing date of the permit application shall receive actual service of the documents required by subsection (a) of this section.

(c) Prior to filing an application for a permit for a coalbed methane well under this article, the applicant shall cause to be published in the county in which the well is located or to be located a Class II legal advertisement as described in section two, article three, chapter fifty-nine of this code, containing such notice and information as the chief shall prescribe by rule, with the first publication date being no more than ten days after the filing of the permit application.

(d) Materials served upon persons described in subsections (a) and (b) of this section shall contain a statement of the methods and time limits for filing comment and objection, who may file comment and objection, the name and address of the chief with whom the comment and objection must be filed, the ability to obtain additional information from the chief, the fact that such persons may request notice of the permit decision, and a list of persons qualified to test water as provided in this section.

(e) Any person entitled to submit comment or objection shall also be entitled to receive a copy of the permit as issued or a copy of the order denying the permit if such person requests the receipt thereof as a part of the comment or objection concerning said permit application.

(f) Persons entitled to notice may contact the district office of the office of oil and gas to ascertain the names and location of water testing laboratories in the area capable and qualified to test water supplies in accordance with standard accepted methods. In compiling such list of names the office of oil and gas shall consult with the state and local health departments.

§22-21-10. Procedure for filing comments.

All persons described in subsection (a), section nine of this article may file comments with the chief as to the location or construction of the applicant's proposed well within fifteen days after the application is filed with the chief.

§22-21-11. Objections or comments to coalbed methane wells by coal owner or operator; hearings.

The owner or operator of any coal seam whose interests may be adversely affected by a coalbed methane well may, within fifteen days from the receipt of notice required by section nine of this article, file objections in writing to such proposed drilling with the chief, setting out the grounds on which such objections are based.

§22-21-12. Review of application; issuance of permit in the absence of objections; copy of permits to county assessor.

The chief shall review each application for a permit and shall determine whether or not a permit shall be issued.

No permit shall be issued less than fifteen days after the filing date of the application for any well work except plugging or replugging; and no permit for plugging or replugging shall be issued less than five days after the filing date of the application except a permit for plugging or replugging a dry hole: Provided, That if the applicant certifies that all persons entitled to notice of the application under the provisions of this article have been served in person or by certified mail, return receipt requested, with a copy of the permit application, including the erosion and sediment control plan, if required, and the plat required by section six of this article, and further files written statements of no objection by all such persons, the chief may issue the permit at any time.

The chief may cause such inspections to be made of the proposed location as to assure adequate review of the application. The permit shall not be issued, or shall be conditioned, including conditions with respect to the location of the well and access roads, prior to issuance if the chief determines that:

(1) The proposed well work will constitute a hazard to the safety of persons; or

(2) The plan for soil erosion and sediment control is not adequate or effective; or

(3) Damage would occur to publicly owned lands or resources; or

(4) The proposed well work fails to protect fresh water sources or supplies. Upon the issuance of any permit pursuant to the provisions of this article, the chief shall transmit a copy of such permit to the office of the assessor for the county in which the well is located.

§22-21-13. Review board hearing; findings; order.

(a) If comment or objection is filed under section ten or eleven of this article, the chief shall forthwith provide to the chairman of the coalbed methane review board a copy of any such objection or comment, together with the application for a permit for the coalbed methane well in question, the plat filed therewith and such other information accompanying the permit as may relate to the comment or grounds for the objection.

(b) The review board shall forthwith schedule a hearing for the purpose of considering such objection or comment. Notice shall be given fifteen days in advance of the hearing to any person filing comment or objection, and to any person to whom notice of the application required, and to any applicant, and the review board shall hold such hearing within thirty days after the deadline for filing objection or comment. At such hearing the review board shall consider the matters raised in any objection or comment, including surface topography and use, and with respect to the ability to mine any affected coal seam safely and the protection of any such seam for future mining shall consider the following:

(1) Whether the drilling location is above or in close proximity to any mine opening, shaft, entry, travelway, airway, haulageway, drainageway or passageway, or to any proposed extension thereof, any abandoned, operating coal mine or any coal mine already surveyed and platted but not yet being operated;

(2) Whether the proposed drilling can reasonably be done through an existing or planned pillar of coal, or in close proximity to an existing or planned pillar of coal, taking into consideration the surface topography;

(3) Whether the proposed well can be drilled safely, taking into consideration the dangers from creeps, squeezes or other disturbances due to the extraction of coal;

(4) The extent to which the proposed drilling location unreasonably interferes with the safe recovery of coal or coalbed methane;

(5) The extent to which the proposed drilling location will unreasonably interfere with present or future coal mining operations on the surface including, but not limited to, operations subject to the provisions of article three of this chapter;

(6) The feasibility of moving the proposed drilling location to a mined-out area, below the coal outcrop, or to some other location;

(7) The feasibility of a drilling moratorium for not more than one year in order to permit the completion of imminent coal mining operations;

(8) The methods proposed for the recovery of coal and coalbed methane;

(9) The practicality of locating the well on a uniform pattern with other wells;

(10) The surface topography and use;

(11) Whether any stimulation of the coal seam will render such seam or any other workable coal seams unmineable or unsafe for mining; and

(12) Whether the director of the office of miners' health, safety and training has submitted recommendations as to the safety of any proposed stimulation. In considering any recommendations made by the director of the office of miners' health, safety and training, the board shall incorporate such recommendations in its findings, conclusions and order unless the board determines that there is clear and convincing evidence on the record supporting a finding, conclusion or order inconsistent with such recommendations.

(c) In weighing the evidence presented to the board the applicant shall have the burden of proving by clear and convincing evidence that stimulation of a workable coal seam of twenty-eight inches or more in thickness will not render such seam or any other workable coal seam of twenty-eight inches or more in thickness unmineable or unsafe for mining.

(d) Upon consideration of the matters raised at the hearing, the review board shall render a decision based upon the ability to mine any affected coal seam safely and the protection of any coal seam for safe future mining, shall enter a written order containing findings of fact and conclusions which address any relevant considerations in subsection (b) of this section and based thereon shall issue and file with the chief a written order directing him to:

(1) Refuse a drilling permit; or

(2) Issue a drilling permit for the proposed drilling location; or

(3) Issue a drilling permit for an alternate drilling location different from that requested by the applicant; or

(4) Issue a drilling permit either for the proposed drilling location or for an alternative drilling location different from that requested by the applicant, provided such alternate location is covered by the agreement and consent required by section seven of this article, but not allow the drilling of the well for a period of not more than one year from the date of issuance of such permit; or

(5) Issue a permit authorizing the applicant to stimulate the well in the absence of consent of the affected coal operators or owners of workable coal seams of twenty-eight inches or more in thickness as described in subsection (a) of section seven of this article, as proposed or as modified by the order of the board. Such order shall further provide for the applicant to furnish evidence of financial security in one of the following forms: (a) A corporate surety bond having on it a company authorized to do business in this state as surety; (b) bonds of the United States or agency thereof, or those guaranteed by, or for which the credit of the United States or agency therefor is pledged for the payment of the principal and interest thereof; (c) direct general obligation bonds of this state, or any other state, or territory of the United States, or the District of Columbia if such other state, territory or the District of Columbia has the power to levy taxes for the payment of the principal and interest of such securities, and if at the time of the deposit such other state, territory or the District of Columbia is not in default in the payment of any part of the principal or interest owing by it upon any part of its funded indebtedness; (d) direct general obligation bonds of any county, district, city, town, village, school district or other political subdivision of this state issued pursuant to law and payable from ad valorem taxes levied on all taxable property located herein, that the total indebtedness after deducting sinking funds and all debts incurred for self-sustaining public works does not exceed five percent of the assessed value of all taxable property therein at the time of the last assessment made before the date of such deposit, and that the issuer has not, within five years prior to the making thereof, been in default for more than ninety days in the payment of any part of the principal or interest on any debt, evidenced by its bonds; (e) revenue bonds issued by this state or any agency of this state when such bonds are payable from revenues or earnings specifically pledged for the payment of principal and interest, and a lawful sinking fund or reserve fund has been established and is being maintained for the payment of such bonds; (f) revenue bonds issued by a municipality in this state for the acquisition, construction, improvement or extension of a waterworks system, or a sewerage system, or a combined waterworks and sewerage system, when such bonds are payable from revenue or earnings specifically pledged for the payment of principal and interest, and a lawful sinking fund or reserve fund has been established and is being maintained for the payment of such bonds; (g) revenue bonds issued by a public service board of a public service district in this state for the acquisition, construction, improvement or extension of any public service properties, or for the reimbursement of payment of the costs and expenses of creating the district, when such bonds are payable from revenue or earnings specifically pledged for the payment of principal and interest, and a lawful sinking fund or reserve fund has been established and is being maintained for the payment of such bonds; (h) revenue bonds issued by a board of trustees of a sanitary district in this state for the corporate purposes of such district, when such bonds are payable from revenue or earnings specifically pledged for the payment of principal and interest, and a lawful sinking fund or reserve fund has been established and is being maintained for the payment of such bonds; and (i) bonds issued by a federal land bank or home owners' loan corporation; (j) cash; or (k) any combination of the above. The operator of the well shall be entitled to all interest and income earned on the collateral securities provided pursuant to the order. Such security given shall be placed in an escrow account. The operator providing security shall be entitled from time to time to receive, upon written order of the board, the whole or any portion of such securities upon depositing in lieu thereof cash equal to the approved securities of the classes herein specified.

The amount of such financial security shall be set by order of the board but shall in no event exceed an amount of $50,000. In setting the amount of financial security, the board shall consider the total amount of coal which could be at risk of economic harm, demonstrated experience in the locale and seams of the proposed stimulation, the probability of damages to the seam, and the likelihood of commercial recovery within thirty years of the date of stimulation.

Such financial security shall remain in force until two years after the affected coal is mined or for a period of thirty years after stimulation of the coal seam or until final resolution of any action timely instituted to collect the bond proceeds, whichever first occurs.

Any coal owner or operator may assert a claim to the posted financial security by instituting an action therefor in the circuit court of the county where the well is located or where the damages occurred.

Upon receipt of such review board order, the chief shall promptly undertake the action directed by the review board, provided that all other provisions of this article have been complied with. All permits issued by the chief pursuant to this section shall be effective ten days after issuance unless the review board orders the chief to stay the effectiveness of a permit for a period not to exceed thirty days from the date of issuance.

If a permit is issued, the chief shall indicate the approved drilling location on the plat filed with the application for a permit and shall number and keep an index of and docket each plat, the name of the well operator, the names and addresses of all persons notified, the dates of conferences, hearings and all other actions taken by the chief and the review board. The chief shall also prepare a record of the proceedings, which record shall include all applications, plats and other documents filed with the chief, all notices given and proof of service thereof, all orders issued, all permits issued and a transcript of the hearing. The record prepared by the chief shall be open to inspection by the public.

(e) Notwithstanding any finding or determination made by the board, in the event a workable coal seam twenty-eight inches or more in thickness is stimulated absent the consent of the coal owner or operator, the applicant and well operator shall be liable in tort without proof of negligence for any damage to such coal seam stimulated or any other workable coal seam twenty-eight inches or more in thickness within seven hundred fifty horizontal feet or one hundred vertical feet of the stimulation and for damages to any mining equipment proximately caused by such stimulation. Such applicant and well operator shall indemnify and hold the coal owner and coal operator harmless against any liability for injury, death or damage to property proximately caused by the stimulation.

§22-21-14. Protective devices required when a coalbed methane well penetrates workable coalbed; when a coalbed methane well is drilled through horizon of coalbed from which coal has been removed; notice of stimulation; results of stimulation.

(a) Except for those coalbeds which the coalbed methane operator proposes to complete for production of coalbed methane or where a ventilation hole is being converted to a well, when a well penetrates one or more workable coalbeds, the well operator shall run and cement a string of casing in the hole through the workable coalbed or beds in such a manner as will exclude all oil, gas or gas pressure as may be found in such coalbed or beds. Such string of casing shall be circulated and cemented in such a manner as provided for in reasonable rules promulgated by the chief in accordance with the provisions of chapter twenty-nine-a of this code. After any such string of casing has been so run and cemented to the surface, drilling may proceed to the permitted depth.

(b) When a coalbed methane well is drilled through the horizon of a coalbed from which the coal has been removed, the hole shall be drilled at least thirty feet below the coalbed, of a size sufficient to permit the placing of a liner which shall start not less than twenty feet above it. Within this liner, which may be welded to the casing to be used, shall be centrally placed the largest-sized casing to be used in the well and the space between the liner and casing shall be filled with cement as they are lowered into the hole. Cement shall be placed in the bottom of the hole to a depth of twenty feet to form a sealed seat for both liner and casing: Provided, That the liner may extend back to the surface and serve as the freshwater or coal protection casing, if done in accordance with subsection (a) of this section and section twenty-one, article six of this chapter, as applicable. If the liner is constructed in this manner, the next string of casing to be run into the well shall extend at least twenty feet below the coalbed. Cement shall be placed between that string of casing and the liner from the bottom of the casing to a point at least twenty feet above the coalbed. Following the setting of the liner, drilling shall proceed in the manner provided above. Should it be found necessary to drill through the horizon of two or more workable coalbeds from which the coal has been removed, such liner shall be started not less than twenty feet below the lowest horizon penetrated and shall extend to a point not less than twenty feet above the highest horizon penetrated.

(c) At least five days prior to the stimulation of any coal seam the well operator shall give the coal owner and operator notice of the date and time of stimulation and shall allow the coal owner or operator to have an observer present at the site at the coal owner or operator's risk and cost. Within thirty days after stimulation is completed, the well operator shall certify the actual stimulation procedure used, including, but not limited to, the fluid injection rate, the injection pressure, the volume and components of fluid injected and the amount and components of the propping agent, if any.

(d) The chief may grant variances to the requirements of this section where the variance would promote the extraction of coalbed methane without affecting mine safety.

§22-21-15. Drilling units and pooling of interests.

(a) In the absence of a voluntary agreement, an operator, owner or other party claiming an ownership interest in the coalbed methane may file an application with the chief to pool: (i) Separately owned interests in a single tract; (ii) separately owned tracts; (iii) separately owned interests in any tract; and (iv) any combination of (i), (ii) and (iii) to form a drilling unit for the production of coalbed methane from one or more coalbed methane wells.

(b) The application for a drilling unit may accompany the application for a permit for a coalbed methane well or be filed as a supplement to the permit application. Such application shall be verified by the applicant and contain the following information for the proposed unit:

(1) The identity of each well and operator as set out in the well permit application;

(2) Each well number, if one has been assigned;

(3) The acreage of the proposed unit, the identity and acreage of each separate tract to be included in the proposed unit and, where parts of tracts are included, the acreage of such parts;

(4) The district and county in which the unit is located;

(5) The names and addresses of all persons to whom notice must be provided under subsection (a), section sixteen of this article known to the applicant. When any coal seam is separately owned, the list of names shall identify such separate ownership giving the names of the separately owned seams;

(6) A statement describing the actions taken by the applicant to obtain a voluntary agreement from each interest owner or claimant named in the application to whom notice must be provided under subsection (a), section sixteen of this article or any other owner or claimant who has notified the applicant of a claim from which agreement has not been obtained;

(7) Other pertinent and relevant information as the chief may prescribe by rules.

(c) The application for a drilling unit shall be accompanied with the following:

(1) A plat prepared by a licensed land surveyor or registered professional engineer showing the location of the coalbed methane well or wells, or proposed well or wells, the boundary and acreage of the proposed drilling unit, the boundary and acreage of each tract contained in the unit and, where parts of tracts are included, the boundary and acreage of such parts, a name identification of each tract and the district and county in which the unit is located. All boundaries must be shown with courses and distances;

(2) A permit application fee of $250;

(3) A certificate by the applicant that the notice requirements of section sixteen of this article were satisfied by the applicant. Such certification may be by affidavit of personal service, or the return receipt card, or other postal receipt, for certified mailing;

(4) An estimate of the cost, or the actual cost if known, of drilling, completing and equipping, operating, plugging and abandoning any well or wells in the proposed unit.

§22-21-16. Notice to owners.

(a) At least thirty days prior to the date set for hearing under section seventeen of this article, the applicant shall deliver by personal service or by certified mail, return receipt requested, notice to the following:

(1) Each coal owner of record and coal operator of record of any coal seam underlying any tract or portion thereof which is proposed to be included in the unit;

(2) Each owner and lessee of record and each operator of natural gas surrounding the well bore and existing in formations above the top of the uppermost member of the "Onondaga Group" or at a depth less than six thousand feet, whichever is shallower. Notices to gas operators shall be sufficient if served upon the agent of record with the Office of Oil and Gas; and

(3) Any coalbed methane owner to the extent not otherwise named which interest arises from a deed, lease, contract, will, inheritance or other instrument of record wherein a person or entity identified in subdivision (1) or (2), subsection (a) of this section or the predecessor in title to such person or entity, expressly granted, leased, reserved or conveyed coalbed methane.

(b) At least thirty days prior to the date set for the hearing under section seventeen of this article, the applicant shall publish a notice by a Class II legal advertisement in the county or counties in which the well unit is to be located. The legal advertisement shall contain the information required by subsection (c) and any other information as the chief shall prescribe by rule.

(c) The notice required by this section shall specify a time and place for a conference and a hearing on this application, shall advise the persons notified that the applicant has filed an application for a drilling unit for the production of coalbed methane, that they may be present and object or offer comments to the formation of the proposed unit and shall be accompanied with copies of: (i) The permit application for the coalbed methane well; (ii) the permit application for the drilling unit; and (iii) the plat of the drilling unit. However, in the case of the notice required by subsection (b) of this section, only the address of where an interested party can obtain such copies is required to be published.

(d) Notice by the applicant to all persons to whom notice must be provided under subsection (a) of this section and notice by publication as provided by subsection (b) of this section shall be deemed to include, and shall be deemed to be sufficient notice to, all potential claimants to ownership of the coalbed methane.

§22-21-17. Review of application; hearing; pooling order; spacing; operator; elections; working interests, royalty interests, carried interests, escrow account for conflicting claims, division order.

(a) Prior to the time fixed for a hearing under subsection (b) of this section, the board shall also set a time and place for a conference between the proposed applicant to operate a coalbed methane drilling unit and all persons to whom notice has been given under subsection (a), section sixteen of this article who have not entered into a voluntary agreement. At such conference the applicant and such other persons present or represented having an interest in the proposed unit shall be given an opportunity to enter into voluntary agreements for the development of the unit upon reasonable terms and conditions.

No order may be issued by the board as to any unit unless the applicant submits at the hearing a verified statement setting forth the results of the conference. If agreement is reached with all parties to the conference, the board shall find the unit is a voluntary unit and issue an order consistent with such finding.

(b) The review board shall, upon request of a proposed applicant for a drilling unit or upon request of a coal owner or operator, provide a convenient date and time for a hearing on the application for a drilling unit, which hearing date shall be no sooner than thirty-five days nor more than sixty days of the date the request for hearing is made. The review board shall review the application and on the date specified for a hearing shall conduct a public hearing. The review board shall take evidence, making a record thereof and consider:

(1) The area which may be drained efficiently and economically by the proposed coalbed methane well or wells;

(2) The plan of development of the coal and the need for proper ventilation of any mines or degasification of any affected coal seams;

(3) The nature and character of any coal seam or seams which will be affected by the coalbed methane well or wells;

(4) The surface topography and property lines of the lands underlaid by the coal seams to be included in the unit;

(5) Evidence relevant to the proper boundary of the drilling unit;

(6) The nature and extent of ownership of each coalbed methane owner or claimant and whether conflicting claims exist;

(7) Whether the applicant for the drilling unit proposes to be the operator of the coalbed methane well or wells within the unit; and if so, whether such applicant has a lease or other agreement from the owners or claimants of a majority interest in the proposed drilling unit;

(8) Whether a disagreement exists among the coalbed methane owners or claimants over the designation of the operator for any coalbed methane wells within the unit and, if so, relevant evidence to determine which operator can properly and efficiently develop the coalbed methane within the unit for the benefit of the majority of the coalbed methane owners;

(9) If more than one person is interested in operating a well within the unit, the estimated cost submitted by each such person for drilling, completing, operating and marketing the coalbed methane from any proposed well or wells; and

(10) Any other available geological or scientific data pertaining to the pool which is proposed to be developed.

(c) The review board shall take into account the evidence introduced, comments received and any objections at the hearing, and if satisfied that a drilling unit should not be established, shall enter an order denying the application. If the review board is satisfied that a drilling unit should be established, it shall enter a pooling order establishing a drilling unit. Such pooling order shall:

(1) Establish the boundary of the proposed unit, making such adjustment in the boundary as is just;

(2) Authorize the drilling and operation of a coalbed methane well or wells for production of coalbed methane from the pooled acreage;

(3) Establish minimum distances for any wells in the unit and for other wells which would drain the pooled acreage;

(4) Designate the operator who will be authorized to drill, complete and operate any well or wells in the unit;

(5) Establish a reasonable fee for the operator for operating costs, which shall include routine maintenance of the well and all accounting necessary to pay all expenses, royalties and amounts due working interest owners;

(6) Such other findings and provisions as are appropriate for each order.

(d) The operator designated in such order shall be responsible for drilling, completing, equipping, operating, plugging and abandoning the well, shall market all production therefrom, shall collect all proceeds therefor and shall distribute such proceeds in accordance with the division order issued by the review board.

(e) Upon issuance of the pooling order, the coalbed methane owners or any lessee of any such owners or any claimants thereto may make one of the following elections within thirty days after issuance of the order:

(1) An election to sell or lease its interest to the operator on such terms as the parties may agree, or if unable to agree, upon such terms as are set forth by the board in its order;

(2) An election to become a working interest owner by participating in the risk and cost of the well; or

(3) An election to participate in the operation of the well as a carried interest owner.

Any entity which does not make an election within said thirty days prescribed herein shall be deemed to have elected to sell or lease under subdivision (1) of this subsection.

(f) The working interest in the well shall include: (i) The right to participate in decisions regarding expenditures in excess of operating costs, taxes, any royalties in excess of one-eighth, and other costs and expenses allowed in the pooling order; and (ii) the obligation to pay for all expenditures. The working interest shall exist in: (i) All well operators and owners who participate in the risk and cost of drilling and completing the well; and (ii) carried interest owners after recoupment provided in subsection (h) of this section. The working interest owners' net revenue share shall be seven eighths of the proceeds of sales of coalbed methane at the wellhead after deduction of operating costs, taxes, any royalties in excess of one-eighth and other costs and expenses allowed in a pooling order. Unless the working interest owners otherwise agree, the working interest owners shall share in all costs and decisions in proportion to their ownership interest in the unit. If any working interest owner deposits or contributes amounts in the escrow account which exceed actual costs, such owner shall be entitled to a refund; and if amounts deposited or contributed are less than actual costs, such owner shall make a deposit or contribution for the deficiency.

(g) The royalty interest in a well shall include the right to receive one eighth of the gross proceeds resulting from the sale of methane at the wellhead and such interest shall exist in the coalbed methane owners: Provided, That any coalbed methane owner who in good faith has entered a lease or other contract prior to receiving notice of an application to form the drilling unit as provided herein shall be entitled to such owner's fractional interest in the royalty calculated at a rate provided for in such contract. Each such owner shall be entitled to share in the royalty in proportion to his or her fractional interest in the unit.

(h) Where a coalbed methane owner elects to become a carried interest owner, such owner shall be entitled to his or her proportionate share of the working interest after the other working interest owners have recouped three hundred percent of the reasonable capital costs of the well or wells, including drilling, completing, equipping, plugging and abandoning and any further costs of reworking or other improvements of a capital nature.

(i) Each pooling order issued shall provide for the establishment of an escrow account into which the payment of costs and proceeds attributable to any conflicting interests shall be deposited and held for the interest of the claimants as follows:

(1) Each participating working interest owner, except for the operator, shall deposit in the escrow account its proportionate share of the costs allocable to the ownership interest claimed by such working interest owner.

(2) The operator shall deposit in the escrow account all proceeds attributable to the conflicting interests of any coalbed methane owners who lease, or are deemed to have leased, their interest, plus all proceeds in excess of operational expenses, as allowed in the pooling order, attributable to the conflicting working and carried interest owners.

(j) After each coalbed methane owner has made, or has been deemed to have made, an election under subsection (e) of this section, the review board shall enter a division order which shall set out the net revenue interest of each working interest owner, including each carried interest owner and the royalty interest of each coalbed methane owner. Thereafter payments shall be made to working interest owners, carried interest owners and royalty interest owners in accordance with the division order, except that payments attributable to conflicting claims shall be deposited in the escrow account. The fractional interest of each owner shall be expressed as a decimal carried to the sixth place.

(k) Upon resolution of conflicting claims either by voluntary agreement of the parties or a final judicial determination, the review board shall enter a revised division order in accordance with such agreement or determination and all amounts in escrow shall be distributed as follows:

(1) Each legally entitled working interest owner shall receive its proportionate share of the proceeds attributable to the conflicting ownership interests;

(2) Each legally entitled carried interest owner shall receive its proportionate share of the proceeds attributable to the conflicting ownership interests, after recoupment of amounts provided in subsection (h) of this section;

(3) Each legally entitled entity leasing, or deemed to have leased, its coalbed methane shall receive a share of the royalty proceeds attributable to the conflicting interests; and

(4) The operator shall receive the costs contributed to the escrow account by each legally entitled participating working interest owner.

(l) The review board shall enact rules for the administration and protection of funds delivered to escrow accounts.

(m) No provision of this section or article shall obviate the requirement that the coal owner's consent and agreement be obtained prior to the issuance of a permit as required under section seven of this article.

§22-21-18. Operation on drilling units.

All operations including, but not limited to, the commencement, drilling or operation of a well upon a drilling unit for which a pooling order has been entered, are hereby deemed to be operations on each separately owned tract in the drilling unit by the several owners. That portion of the production allocated to a separately owned tract included in a drilling unit is hereby deemed to be produced from that tract.

§22-21-19. Validity of unit agreements.

No agreement between or among coalbed methane operators or owners entered into for the development of coalbed methane or forming drilling units therefor may be held to violate the statutory or common law of this state prohibiting monopolies or acts, arrangements, contracts, combinations or conspiracies in restraint of trade or commerce.

§22-21-20. Spacing.

No coalbed methane well may be drilled closer than one hundred feet of the outermost boundary of the coalbed methane tract, leased premises, or unit from which coalbed methane is or will be produced or within one thousand six hundred linear feet of the location of an existing well or a proposed well for which a permit application is on file, unless all owners and operators of any affected workable coal seams agree in writing. Affected workable coal seams for purposes of this section shall be those which will be penetrated or those seams more than twenty-eight inches in thickness from which production is targeted. Spacing shall otherwise be as provided in a pooling order issued by the chief, an order establishing special field rules or an order issued by the review board.

§22-21-21. Dry or abandoned wells.

Any coalbed methane well which is completed as a dry hole or which has not produced coalbed methane in paying quantities for a period of twelve consecutive months shall be presumed to have been abandoned and the operator shall promptly plug the well and reclaim all surface land affected by the well in accordance with the provisions of this article, unless the operator furnishes satisfactory proof to the chief that there is a bona fide future use for such well in accordance with the rules promulgated under article six of this chapter.

§22-21-22. Notice of plugging and reclamation of well; right to take well; objection; plugging order; plugging for mine-through.

(a) Prior to the commencement of plugging operations the operator shall give thirty days' advance notice to the chief and to all coal owners and operators whose names and addresses would be required for a permit application under subdivision (2), subsection (b), section six of this article as of the date of the notice. Such notice shall set out the number and other identification of the well, a copy of the well plat, the date plugging will commence, and the manner and method of plugging.

(b) Any coal owner or operator whose coal seam is affected by such well shall have the following rights:

(1) To convert the well to a vent hole or otherwise take the well. In such event the chief, upon determination that the coal owner or operator has placed the well under a mining permit, shall release the well operator's bond and the well operator shall be relieved of further responsibility for the well; and

(2) To file comment or objection with the chief, within fifteen days after receipt of notice of intent to plug, with respect to the proposed manner or method of plugging. The chief shall consider any such comment or objection and issue an order specifying the manner and method of plugging and reclamation.

(c) Whenever any coalbed methane well is located in that portion of a coal seam which will be mined within six months, the well operator shall, within sixty days after notice from the coal owner or coal operator that the well is to be mined through, plug the well in such manner that the well can be safely mined through.

§22-21-23. Method of plugging.

All coalbed methane wells shall be plugged in such a manner that any workable coal seam surrounding the well can be safely mined and that the well can be mined through. The chief shall promulgate rules specifying the manner and method of plugging coalbed methane wells and in doing so, or in entering any order for such plugging and reclamation, shall give special consideration to the ability to mine any affected coal seam safely and the protection of any affected coal seam for future mining.

§22-21-24. Existing mining rights.

Nothing in this article shall be construed to affect the mining and other property rights of any coal owner nor shall any provision of this article be construed to preclude a coal operator from removing support of the surface and any structure or facilities thereon and other strata as such rights may exist in any severance deed or other contract.

§22-21-25. Judicial review; appeal to Supreme Court of Appeals; legal representation for review board.

(a) Any person adversely affected by an order of the chief or review board is entitled to judicial review. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code apply to and govern the judicial review.

(b) The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

(c) Legal counsel and services for the chief or review board in all appeal proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his or her assistants and in any circuit court by the prosecuting attorney of the county, all without additional compensation. The chief or review board, with the written approval of the Attorney General, may employ special counsel to represent the chief or review board at any appeal proceedings.

§22-21-26. Limitation on actions in trespass.

In any case where title to subsurface minerals has been severed in such a way that title to natural gas underlying such tract and title to coal underlying such tract are in different persons, it shall be an affirmative defense to any action for willful trespass arising from the drilling and commercial production of methane from any coal seam underlying such tract, that the operator of such well permitted, drilled and completed such well under color of title of any instrument, deed, or lease for oil and gas purposes from the gas owner, or an instrument, deed or lease for coal mining purposes from the coal owner.

§22-21-27. Injunctive relief.

(a) Whenever it appears to the chief or review board that any person has been or is violating or is about to violate any provision of this article, any rule promulgated by the chief or review board, any order or any final decision of the chief or review board, the chief or review board may apply, in the name of the state, to the circuit court of the county in which the violation occurred, is occurring or is about to occur, or to the judge thereof in vacation, for injunctive relief against the person and any other persons who have been, are or are about to be, involved in any practices, acts or omissions, in violation, enjoining the violation or violations. The application may be made and prosecuted to conclusion whether any violation or violations have resulted or may result in prosecution or conviction under the provisions of section six or twenty-eight of this article.

(b) Upon application by the chief or review board, the circuit courts of this state may by mandatory or prohibitory injunction compel compliance with the provisions of this article, the rules promulgated by the chief or review board and all orders of the chief or review board. The court may issue a temporary injunction in any case pending a decision on the merits of any application filed. Any other section of this code to the contrary notwithstanding, the state may not be required to furnish bond or other undertaking as a prerequisite to obtaining mandatory, prohibitory or temporary injunctive relief under the provisions of this article.

(c) The judgment of the circuit court upon any application permitted by the provisions of this section is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals.

(d) The chief or review board shall be represented in all such proceedings by the Attorney General or his or her assistants and in proceedings in the circuit courts by the prosecuting attorneys of the several counties as well, all without additional compensation. The chief or review board, with the written approval of the Attorney General, may employ special counsel to represent the chief or review board in any proceedings.

(e) If the chief or review board refuses or fails to apply for an injunctive relief to enjoin a violation or threatened violation of any provision of this article, any rule promulgated by the chief or review board hereunder or any order or final decision of the chief or review board, within ten days after receipt of a written request to do so by any person who is or will be adversely affected by such violation or threatened violation, the person making such request may apply in his or her own behalf for an injunction to enjoin the violation or threatened violation in any court in which the chief or review board might have brought suit. The chief or review board shall be made a party defendant in the application in addition to the person or persons violating or threatening to violate any provision of this article, any rule promulgated by the chief or review board hereunder or any order of the chief or review board. The application shall proceed and injunctive relief may be granted without bond or other undertaking in the same manner as if the application had been made by the chief or review board.

§22-21-28. Penalties.

(a) Any person who violates any term or condition of a permit issued under this article, and the violation is found by the chief or review board to have rendered unmineable all or a portion of a workable coal seam, is subject to civil penalties, to be imposed and collected by the chief or review board in an amount not to exceed the reasonably expected net profit lost to the coal owner as a result. All penalties collected shall be transferred to the special reclamation fund as provided by section twenty-nine, article six of this chapter.

(b) Any person who violates any provision of this article, any of the rules promulgated by the chief or review board or any order of the chief or review board other than a violation governed by the provisions of subsection (c) of this section, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000.

(c) Any person who, with the intention of evading any provision of this article, any of the rules promulgated by the chief or any order of the chief or review board, who makes or causes to be made any false entry or statement in any application or other document permitted or required to be filed under the provisions of this article, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned in the county jail not more than six months, or both fined and imprisoned.

(d) Any person who knowingly aids or abets any other person in the violation of any provision of this article, any of the rules promulgated hereunder or any order or final decision of the chief or review board or director, shall be subject to the same penalty as that prescribed in this article for the violation by such other person.

§22-21-29. Construction.

This article shall be liberally construed so as to effectuate the declaration of public policy set forth in section one of this article.

§22-22-1. Legislative findings; legislative statement of purpose.

(a) The Legislature finds there is property in West Virginia that is not being put to its highest productive use because it is contaminated or it is perceived to be contaminated as a result of past activity on the property.

(b) The Legislature further finds that abandonment or underutilization of contaminated or potentially contaminated industrial sites results in inefficient use of public facilities and services and increases the pressure for development of uncontaminated pristine land. Since existing industrial areas frequently have transportation networks, utilities, and an existing infrastructure, it can be less costly to society to redevelop existing industrial areas than to relocate amenities for industrial areas at pristine sites.

(c) The Legislature further finds that the existing legal structure creates uncertainty regarding the legal effect of remediation upon liability. Legal uncertainty serves as a further disincentive to productive redevelopment of brownfields. Therefore, incentives should be put in place to encourage voluntary redevelopment of contaminated or potentially contaminated sites.

(d) The Legislature further finds that an administrative program should be established to encourage persons to voluntarily develop and implement remedial plans without the need for enforcement action by the Department of Environmental Protection. Therefore, it is the purpose of this article to:

(1) Establish an administrative program to facilitate voluntary remediation activities and brownfield revitalization;

(2) Provide financial incentives to entice investment at brownfield sites; and

(3) Establish limitations on liability under environmental laws and rules for those persons who remediate sites in accordance with applicable standards established under this article.

§22-22-2. Definitions.

As used in this article, unless otherwise provided or indicated by the context:

"Abandoned property" means real property for which the current owner cannot be determined or cannot be located or property which has been forfeited to or acquired by the State for the nonpayment of taxes pursuant to State law;

"Applicable standards", mean the remediation levels established in or pursuant to section three of this article;

"Bona fide prospective purchaser" means a person or a tenant of a person who acquires ownership, or proposes to acquire ownership, of real property after the release of hazardous substances occurred;

"Brownfield" means any property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant;

"Brownfields Revolving Fund" means the special revenue fund established to provide loans for site assessments and remediation of eligible brownfield sites;

"Contaminant" or "contamination" means any man made or man induced alteration of the chemical, physical, or biological integrity of soils, sediments, air, and surface water or groundwater resulting from activities regulated under this article, in excess of applicable standards in this chapter, including any hazardous substance, petroleum, or natural gas;

"Controls" means to apply engineering measures, such as capping or treatment, or institutional measures, such as deed restrictions, to contaminated sites;

"Department" means the West Virginia Department of Environmental Protection;

"Development Authority" means any authority as defined in §7-12-1, et seq. of this code or the state Development Office as defined in §2-5B-1, et seq. of this code.

"Engineering controls" means remedial actions directed exclusively toward containing or controlling the migration of contaminants through the environment. These include, but are not limited to, slurry walls, liner systems, caps, leachate collection systems, and groundwater recovery trenches;

"Hazardous substance" means any substance identified as a hazardous substance pursuant to the "Comprehensive Environmental Response, Compensation and Liability Act," 42 U.S.C. § 9604-9606;

"Innocent land owner" means a person who holds any title, security interest, or any other interest in a brownfield site and who acquired ownership of the real property after the release of hazardous substances occurred;

"Industrial activity" means commercial, manufacturing, public utility, mining, or any other activity done to further the development, manufacturing, or distribution of goods and services, intermediate and final products, and solid waste created during such activities, including, but not limited to administration of business activities; research and development; warehousing; shipping; transport; remanufacturing; stockpiling of raw materials; storage, repair, and maintenance of commercial machinery or equipment; and solid waste management;

"Institutional controls" means legal or contractual restrictions on property use that remain effective after the remediation action is completed and are used to meet applicable standards. The term may include, but is not limited to, deed and water use restrictions;

"Land-use covenant" means an environmental covenant within the meaning of §22-22B-2(4) of this code, and is a document or deed restriction issued by the Secretary on remediated sites which have attained and demonstrate continuing compliance with site-specific standards for any contaminants at the site and which is agreed to by the owner of the property. The covenant shall be recorded by deed in the office of the county clerk of the county wherein the site is situated. The document or covenant shall be included by any grantor or lessor in any deed or other instrument of conveyance or any lease or other instrument whereby real property is let for a period of one year or more, as more fully set forth in sections thirteen and fourteen of this article;

"Licensed remediation specialist" means a person certified by the Secretary pursuant to rules adopted under section three of this article as qualified to perform professional services and to supervise the remediation of contaminated sites;

"Natural gas" means natural gas, natural gas liquids, liquefied natural gas, coalbed methane, synthetic gas usable for fuel, or mixtures of natural gas and synthetic gas;

(r) "Nonresidential property" means any real property on which industrial activity is performed. This term shall not include schools, day care centers, nursing homes, or other residential-style facilities or recreational areas;

"Operator" means the person responsible for the overall operation of a facility site. A person who executes a voluntary remediation agreement with the Secretary may be considered an operator for the purpose of carrying out the activities required by the government;

"Owner" means any person owning or holding legal or equitable title or possessory interest in property or, where title or control of property was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to this state or a political subdivision of this state;

"Person" means any public or private corporation, institution, association, firm, or company organized or existing under the laws of this or any other state or country; the state of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; partnership; trust; estate; person or individuals acting individually or as a group; or any legal entity whatever;

"Petroleum" means oil or petroleum of any kind and in any form, including, without limitation, crude oil or any fraction thereof, oil sludge, oil refuse, used oil, substances or additives in the refining or blending of crude petroleum or petroleum stock;

"Practical quantitation level" means the lowest analytical level that can be reliably achieved within specified limits of precision and accuracy under routine laboratory conditions for a specified matrix. It is based on quantitation, precision, and accuracy under normal operation of a laboratory and the practical need in a compliance-monitoring program to have a sufficient number of laboratories available to conduct the analyses;

"Property" means any parcel of real property, and any improvements thereof;

"Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating, dumping, or disposing of any contaminant or regulated substance into the environment, including, without limitation, the abandonment or improper discarding of barrels, containers, or any other closed receptacle containing any contaminant;

"Remediation" or "remedial action" means to cleanup, mitigate, correct, abate, minimize, eliminate, control, and contain or prevent a release of a contaminant into the environment in order to protect the present or future public health, safety, welfare, or the environment, including preliminary actions to study or assess the release;

"Remediation contractor" means any person who enters into and is carrying out a contract to cleanup, remediate, respond to or remove a release or threatened release of a contaminant and includes any person who the contractor retained or hired to provide services under a remediation contract;

"Residential" means any real property or portion thereof which is designed for the housing of human beings and does not meet the definition of "nonresidential" property set forth above;

"Risk" means the probability that a contaminant, when released into the environment, will cause an adverse effect in exposed humans or other living organisms;

"Secretary" means the Secretary of the Department of Environmental Protection or any other person to whom he or she has delegated authority or duties in accordance with §22-1-6 or §22-1-8 of this code;

"Site" means any property or portion thereof which contains or may contain contaminants and is eligible to participate in the voluntary remediation program as provided under this article;

"Unilateral enforcement order" means a written final order issued by a federal or state agency charged with enforcing environmental law, which compels the fulfillment of an obligation imposed by law, rule against a person without their voluntary consent; and

"Voluntary remediation" means a series of measures that may be self-initiated by a person to identify and address potential sources of contamination of property and to establish that the property complies with applicable remediation standards.

§22-22-3. Rule-making authority of the Secretary.

The Secretary, in accordance with chapter twenty-nine-a of this code, shall propose, and subsequently may amend, suspend, or rescind, rules that do the following:

(a) Establish an administrative program for both brownfield revitalization and voluntary remediation, including application procedures;

(b) Establish procedures for the licensure of remediation specialists, including, but not limited to establishing licensing fees, testing procedures, disciplinary procedures, and methods for revocation of licenses;

(c) Establish procedures for community notification and involvement;

(d) Establish risk-based standards for remediation;

(e) Establish standards for the remediation of property;

(f) Establish a risk protocol for conducting risk assessments and establishing risk-based standards. The risk protocol shall:

(1) Require consideration of existing and reasonably anticipated future human exposures based on current and reasonably anticipated future land and water uses and significant adverse effects to ecological receptor health and viability;

(2) Include, at a minimum, both central tendency and reasonable upper bound estimates of exposure;

(3) Require risk assessments to consider, to the extent practicable, the range of probabilities of risks actually occurring, the range or size of populations likely to be exposed to risk, and quantitative and qualitative descriptions of uncertainties;

(4) Establish criteria for what constitutes appropriate sources of toxicity information;

(5) Address the use of probabilistic modeling;

(6) Establish criteria for what constitutes appropriate criteria for the selection and application of fate and transport models;

(7) Address the use of population risk estimates in addition to individual risk estimates;

(8) To the extent considered appropriate and feasible by the Secretary considering available scientific information, define appropriate approaches for addressing cumulative risks posed by multiple contaminants or multiple exposure pathways;

(9) Establish appropriate sampling approaches and data quality requirements; and

(10) Include public notification and involvement provisions so that the public can understand how remediation standards are applied to a site and provide for clear communication of site risk issues, including key risk assessment assumptions, uncertainties, populations considered, the context of site risks to other risks, and how the remedy will address site risks;

(g) Establish chemical and site-specific information, where appropriate for purpose of risk assessment. Risk assessments should use chemical and site-specific data and analysis, such as toxicity, exposure, and fate and transport evaluations in preference to default assumptions. Where chemical and site-specific data are not available, a range and distribution of realistic and plausible assumptions should be employed;

(h) Establish criteria to evaluate and approve methods for the measurement of contaminants using the practical quantitation level and related laboratory standards and practices to be used by certified laboratories;

(i) Establish standards and procedures for the use of certificates of completion, land use covenants, and other legal documents necessary to effectuate the purposes of this article; and

(j) Establish any other rules necessary to carry out the requirements and the legislative intent of this act.

§22-22-4. Voluntary remediation program; eligibility application and fee; information available to public; confidentiality of trade secrets; information; criminal penalties; requirements of site assessment; rejection or return of application; appeal of rejection.

(a) Any site is eligible for participation in the voluntary remediation program, except those sites subject to a unilateral enforcement order, under §§ 104 through 106 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9604-9006, or which have been listed or proposed to be listed by the United States Environmental Protection Agency ("USEPA") on the priorities list of Title I of said act, or which is subject to a unilateral enforcement order under §3008 and §7003 of the Resource Conservation Recovery Act ("RCRA"), 42 U.S.C. § 6928 or § 6973, or which is subject to any unilateral enforcement order for corrective action under this chapter: Provided, That the release which is subject to remediation was not created through gross negligence or willful misconduct.

(b) Any person who desires to participate in the voluntary remediation program shallsubmit to the Department an application and an application fee established by the Secretary. The application shall be on a form provided by the Secretary and contain the following information: The applicant's name, address, financial and technical capability to perform the voluntary remediation, a general description of the site, a site assessment of the actual or potential contaminants prepared by a licensed remediation specialist, and all other information required by the Secretary.

(c) The Secretary shall promulgate a legislative rule establishing a reasonable application fee. Fees collected under this section shall be deposited to the credit of the Voluntary Remediation Fund in the State Treasury as established in §22-22-6 of this code.

(d) Information obtained by the Department under this article shall be available to the public, unless the Secretary certifies such information to be confidential. The Secretary may make such certification where any person shows, to the satisfaction of the Secretary, that the information or parts thereof, if made public, would divulge methods, processes, or activities entitled to protection as trade secrets. In submitting data under this article, any person required to provide such confidential data may designate the data which that person believes is entitled to protection under this section and submit such designated data separately from other data submitted under this article. This designation request shall be made in writing. Any person who divulges or discloses any information entitled to protection under this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a county jail for not more than one year, or both fined and imprisoned.

(e) The site assessment must include a legal description of the site; a description of the physical characteristics of the site, and the general operational history of the site to the extent that the history is known by the applicant; and information of which the applicant is aware concerning the nature and extent of any known contamination at the site and immediately contiguous to the site, or wherever the contamination came to be located.

(f) The Secretary may reject or return an application if:

(1) A federal requirement precludes the eligibility of the site;

(2) The application is not complete and accurate; or

(3) The site is ineligible under the provisions of this article.

(g) The Secretary shall act upon all applications within 45 days of receipt, unless an extension of time is mutually agreed to and confirmed in writing. If an application is returned by the Secretary because it is not complete or accurate, the Secretary shall provide the applicant a list of all information that is needed to make the application complete or accurate. The applicant may resubmit an application without submitting an additional application fee.

(h) If the Secretary rejects the application, then he or she shall notify the applicant that the application has been rejected and provide an explanation of the reasons for the rejection. The applicant may, within 25 days of rejection, indicate his or her desire to resubmit the application. Upon final determination by the Secretary, if the application is rejected, the Secretary shall return one half of the application fee. The applicant may appeal the Secretary’s rejection of the application to the Environmental Quality Board established under §22B-3-1, et seq. of this code.

(i) Upon withdrawal of an application, the applicant is entitled to the refund of one half of the application fee, provided the application has not been accepted by the Secretary.

§22-22-5. Brownfields Revolving Fund applicant eligibility; loans; remediation process; and public notification.

(a) A person may be eligible for Brownfields Revolving Fund moneys when environmental remediation is undertaken pursuant to this article and the person did not cause or contribute to the contamination on the property. A person receiving Brownfields Revolving Fund moneys shall comply with the appropriate standards established by the Secretary pursuant to this article and rules promulgated hereunder.

(b) After conferring with the Secretary, the person may apply to the Secretary for a site assessment or remediation loan under §22-22-6 of this code. An application for money from the Brownfields Revolving Fund must be submitted along with an application fee to be established by the Secretary.

(c) Brownfields being remediated by persons who did not cause or contribute to the contamination of the site are also eligible for consideration for remediation loans established under §15-31-1, et seq. of this code.

(d) Persons receiving Brownfields Revolving Fund moneys to perform remediation and revitalization of brownfield sites shall comply with the following public notice and involvement requirements:

(1) Submit a notice of intent to remediate to the Department. This notice shall provide, to the extent known, a brief description of the location of the site; a listing of the contaminants involved; and the proposed remediation measures. The Department shall publish an acknowledgment noting the receipt of the notice of intent in a Department publication of general circulation. At the time a notice of intent to remediate a site is submitted to the Department, a copy of the notice shall be provided to the municipality and the county in which the site is located. A summary of the notice of intent shall be published in a newspaper of general circulation serving the area in which the site is located;

(2) Provide a 30-day public, county, and municipal comment period for the notice required by this subsection during which the public, county, and municipality may request to be involved in the development of the remediation and reuse plans for the site. If requested by the public, county, municipality, or the Secretary, the person undertaking the remediation shall develop and implement a public involvement program plan which meets the requirements set forth by the Secretary; and

(3) Adhere to other public notice requirements as stipulated by federal or other grantors that provide moneys to the Brownfields Revolving Fund, or as promulgated in the rules developed by the Secretary.

§22-22-6. Voluntary remediation administrative fund established; voluntary remediation fees authorized; Brownfields revolving fund established; disbursement of funds moneys; employment of specialized persons authorized.

(a) There is hereby reauthorized and continued in the State Treasury special revenue fund known as the Voluntary Remediation Administrative Fund. The fund shall operate as a special fund whereby all deposits and payments thereto do not expire to the General Revenue Fund but shall remain in the fund and be available for expenditure in succeeding fiscal years. This fund shall consist of fees collected by the Secretary in accordance with the provisions of this article as well as interest earned on investments made from moneys deposited in the fund. Moneys from this fund shall be expended by the Secretary for the administration, licensing, enforcement, inspection, monitoring, planning, research, and other activities required by this article.

The Secretary shall promulgate legislative rules in accordance with the provisions of §29A-3-1 et seq. of this code establishing a schedule of voluntary remediation fees applicable to persons who conduct activities subject to the provisions of this article. The fees may include an appropriate assessment of other program costs not otherwise attributable to any specific site but necessary for the administrative activities required to carry out the provisions of this article.

(b) There is hereby reauthorized and continued in the State Treasury a special revenue fund known as the Brownfields Revolving Fund. The fund shall be comprised of moneys allocated to the state by the federal government expressly for the purposes of establishing and maintaining a state brownfields redevelopment revolving fund, all receipts from loans made from the fund, any moneys appropriated by the Legislature, all income from the investment of moneys held in the fund, and all other sums designated for deposit to the fund from any source, public or private. The fund shall operate as a special fund whereby all deposits and payments thereto do not expire to the General Revenue Fund but shall remain in the account and be available for expenditure in succeeding fiscal years. Moneys in the fund, to the extent that moneys are available, shall be used to make loans to persons to finance site assessments and remediation of eligible brownfield sites and such other activities as authorized by any federal grant received or any legislative appropriation: Provided, That moneys in the fund may be utilized to defray those costs incurred by the Department in administering the provisions of this subsection. The Secretary shall promulgate rules in accordance with the provisions of §29A-3-1 et seq. of this code, to govern the disbursement of moneys from the fund, and establish a state brownfields redevelopment assistance program to direct the distribution of loans from the fund, and establish the interest rates and repayment terms of any loans: Provided, however, That amounts in the fund, appropriated by the West Virginia Legislature, and which are found from time to time to exceed the amount needed for the purposes set forth in this article, may be transferred to other accounts or funds and redesignated for other purposes through appropriations of the Legislature. Moneys from any other source, public or private, shall remain in the fund.

In order to carry out the administration and management of the fund, the Department may employ officers, agents, advisors, and consultants, including attorneys, financial advisors, engineers, other technical advisors, and public accountants and, not withstanding any provisions of this code to the contrary, determine their duties and compensation without the approval of any other agency or instrumentality.

§22-22-7. Voluntary remediation agreement; required use of licensed remediation specialist; required provisions of a voluntary remediation agreement; failure to reach agreement; appeal to the Environmental Quality Board; no enforcement action when subject of agreement.

Upon acceptance of an application, the Secretary shall enter into an agreement with the applicant for the remediation of the site which sets forth the following:

(a) A person desiring to participate in the voluntary remediation program shall enter into a voluntary remediation agreement that sets forth the terms and conditions of the evaluation of the reports and the implementation of work plans;

(b) Any voluntary remediation agreement approved by the Secretary shall provide for the services of a licensed remediation specialist for supervision of all activities described in the agreement;

(c) A voluntary remediation agreement shall provide for cost recovery of all reasonable costs incurred by the Department in review and oversight of the person's work plan and reports as a result of field activities or attributable to the voluntary remediation agreement, which are in excess of the fees submitted by the applicant along with a schedule of payments; appropriate tasks, deliverables, and schedules for performance of the remediation; a listing of all statutes and rules for which compliance is mandated; a description of any work plan or report to be submitted for review by the Secretary, including a final report that provides all information necessary to verify that all work contemplated by the agreement has been completed; the licensed remediation specialist's supervision of remediation contractors; and a listing of the technical standards to be applied in evaluating the work plans and reports, with reference to the proposed future land use to be achieved. The voluntary remediation agreement may also provide for alternate dispute resolutions between the parties to the agreement, including, but not limited to, arbitration or mediation of any disputes under this agreement;

(d) A voluntary remediation agreement may not be modified or amended, unless the amendment or modification is reduced to writing and mutually agreed upon by the parties to the agreement: Provided, That when the Secretary determines that there is an imminent threat to the public, he or she may unilaterally modify or amend the agreement;

(e) Upon acceptance of an application, the Secretary and the applicant shall develop a remediation agreement. If an agreement is not reached between the applicant and the Secretary on or before the 31st day after the application has been accepted, either party may withdraw from negotiations. If this occurs, the agency retains the application fee. The applicant may appeal the failure to reach agreement to the Environmental Quality Board as established under §22B-3-1, et seq. of this code. By mutual agreement, when it becomes impractical to reach an agreement within 31 days, the time limit may be extended in writing; and

(f) The Department may not initiate an enforcement action against a person who is in compliance with this section for the contamination that is the subject of the voluntary remediation agreement or for the activity that resulted in the contamination, unless there is an imminent threat to the public.

§22-22-8. Voluntary remediation work plans and reports.

After signing a voluntary remediation agreement, the person undertaking remediation shall prepare and submit the appropriate work plans and reports to the Secretary. The Secretary shall review and evaluate the work plans and reports for accuracy, quality, and completeness. The Secretary may approve a voluntary remediation work plan or report or disapprove and notify the person of additional information needed to obtain approval.

§22-22-9. Termination of agreement; cost of recovery; legal actions.

The person undertaking remediation may, in his or her sole discretion, terminate the agreement as provided by the terms of the agreement and by giving 15 days advance written notice of termination. Only those costs incurred or obligated by the Secretary before notice of termination of the agreement are recoverable, if the agreement is terminated. The termination of the agreement does not affect any right the Secretary may have under any other law to recover costs. The person undertaking the remediation must pay the Department’s costs associated with the voluntary remediation within 31 days after receiving notice that the costs are due and owing. The Secretary may bring an action in Kanawha County circuit court or in the circuit court in the county wherein the property is situated to recover the amount owed to the Department and reasonable legal expenses.

§22-22-10. Inspections; right of entry; sampling; reports and analyses.

(a) The Secretary, upon presentation of proper credentials, may enter any building, property, premises, place, or facility where brownfield or voluntary remediation activities are being or have been performed for the purpose of making an inspection to ascertain the compliance by any person with the provisions of this article or the rules promulgated by the Secretary.

(b) The Secretary shall make periodic inspections at sites subject to this article. After an inspection is made, a report shall be filed with the Secretary and a copy shall be provided to the person who is responsible pursuant to the voluntary agreement for remediation activities. The reports shall not disclose any confidential information protected under the provisions of §22-22-4(d) of this code. The inspection reports shall be available to the public in accordance with the provisions of §29B-1-1, et seq. of this code.

(c) The Secretary may, upon presentation of proper credentials, enter any building, motor vehicle, property, premises, or site where brownfield or voluntary remediation activities are being or have been performed and take samples of wastes, soils, air, surface water, and groundwater. In taking such samples, the Secretary may utilize sampling methods necessary in exercising good scientific technique. Following the taking of any sample, the Secretary shall give the person responsible in the voluntary agreement for remediation activities a receipt describing the sample obtained and, if requested, a portion of each sample equal in volume or weight to the portion retained. The Secretary shall promptly provide a copy of any analysis made to the responsible person named in the voluntary agreement.

(d) Upon presentation of proper credentials, the Secretary shall be given access to all records relating to a voluntary remediation.

§22-22-11. Licensed remediation specialist, licensure procedures.

(a) A person may not practice as a licensed remediation specialist without a license issued by the Secretary. Any violation of this provision shall be subject to the enforcement orders set forth in §22-22-12 of this code.

(b) To obtain a license, a person must apply to the Secretary in writing on forms approved and supplied by the Secretary. Each application for examination for a license shall contain:

(1) The full name of the person applying for the license;

(2) The principal business address of the applicant;

(3) All formal academic education and experience of the applicant to demonstrate professional expertise of the applicant;

(4) If waiver of the examination is being requested, any license or certification that the person desires to be considered as part of the waiver request;

(5) The examination fee; and

(6) Any other necessary information prescribed by the Secretary.

(c) The Secretary shall establish the date, time, and location of licensed remediation specialist examinations.

(d) The applicant shall demonstrate that he or she possesses a practical knowledge of the remediation activities; procedures necessary to remediate a site; and the management of contaminants at a site, including, but not limited to, site investigation, health and safety protocol, quality assurance, feasibility studies and remedial design.

(e) If the Secretary does not certify the remediation specialist applicant, the Secretary shall inform the applicant in writing of the reasons therefor. The Secretary may not deny a license without cause.

(f) It is the licensed remediation specialist's duty to protect the safety, health, and welfare of the public as set forth in this article, in the performance of his or her professional duties. The licensed remediation specialist is responsible for any release of contaminants during remediation activities undertaken pursuant to the approved remediation agreement, work plans, or reports. If a licensed remediation specialist faces a situation where he or she is unable to meet this duty, the licensed remediation specialist may either sever the relationship with the client or employer or refuse professional responsibility for work plan, report, or design. The specialist shall notify the Department if there is a threat to the environment or the health, safety, or welfare of the public.

(g) A licensed remediation specialist shall only perform assignments for which the specialist is qualified by training and experience in those specific technical fields; be objective in work plans, reports, and opinions; and avoid any conflict of interest with employer, clients, and suppliers. A licensed remediation specialist shall not solicit or accept gratuities, directly or indirectly, from contractors, agents, or other parties dealing directly with the employer or client in regard to professional services being performed at the work site; accept any type of bribe; falsify or permit misrepresentation of professional qualifications; intentionally provide false information to the Secretary; or knowingly associate with a person who is engaging in business or professional practices of a fraudulent or dishonest nature.

(h) A licensed remediation specialist shall not charge any special fees above usual and customary professional rates for being licensed.

(i) The license issued by the Secretary may be renewed every two years for any licensed remediation specialist in good standing. The Secretary, by rule, shall establish license fees.

(j) The Secretary may revoke a license; suspend a license for not more than five years; or impose lesser sanctions as may be appropriate for acts or omissions in violation of this article.

§22-22-12. Enforcement orders for licensed remediation specialists; cease and desist order; criminal penalties.

(a) If the Secretary, upon inspection, investigation, or through other means observes, discovers, or learns that a licensed remediation specialist has violated the provisions of this article or any rules promulgated hereunder, the Secretary may:

(1) Issue an order stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time. An order under this section includes, but is not limited to, orders suspending or revoking licenses, orders requiring a person to take remedial action, or cease and desist orders; or

(2) Request the prosecuting attorney of the county in which the alleged violation occurred bring a criminal action as provided for herein.

(b) Any person issued an order may file a request for reconsideration with the Secretary within seven days of the receipt of the order. The Secretary shall conduct a hearing on the merits of the order within 10 days of the filing of the request for reconsideration. The filing of a notice of request for reconsideration does not stay or suspend the execution or enforcement of the order.

(c) Any licensed remediation specialist who fraudulently misrepresents that work has been completed and such action results in an unjustified and inexcusable disregard for the safety of others, thereby placing another in imminent danger or contributing to ongoing harm to the environment, is guilty of a felony and, upon conviction thereof, shall be fined not more than $50,000, or imprisoned not less than one nor more than two years, or both.

(d) If any person associated with remediation of a brownfield or voluntary remediation site engages in fraudulent acts or representations to the Department, he or she is guilty of a felony and, upon conviction thereof, shall be fined not more than $50,000 or imprisoned not less than one nor more than two years, or both.

§22-22-13. Certificate of completion.

(a) The licensed remediation specialist shall issue a final report to the person undertaking the voluntary remediation when the property meets the applicable standards and all work has been completed as contemplated in the voluntary remediation agreement or the site assessment shows that all applicable standards are being met. Upon receipt of the final report, the person may seek a certificate of completion from the Secretary.

(b) The Secretary may delegate the responsibility for issuance of a certificate of completion to a licensed remediation specialist in limited circumstances, as specified by rule pursuant to this article.

(c) The certificate of completion shall contain a provision relieving a person who undertook the remediation and subsequent successors and assigns from all liability to the state as provided under this article which shall remain effective as long as the property complies with the applicable standards in effect at the time the certificate of completion was issued. This certificate is subject to reopener provisions of section fifteen of this article and may, if applicable, result in a land-use covenant as provided in section fourteen of this article.

§22-22-14. Land-use covenant; criminal penalties.

(a) The Secretary shall establish by rule, criteria for deed recordation of land-use covenants and containing all necessary deed restrictions. The Secretary shall cause all land-use covenants to appear in the chain of title by deed to be properly recorded in the office of the county clerk where the remediation site is located. If institutional and engineering controls are used, in whole or in part, to achieve a remediation standard, the Secretary shall direct that a land-use covenant be applied. The covenant shall include whether residential or nonresidential exposure factors were used to comply with the site-specific standard. The covenant shall contain a provision relieving the person who undertook the remediation and subsequent successors and assigns from all civil liability to the state as provided under this article and shall remain effective as long as the property complies with the applicable standards in effect at the time the covenant was issued.

(b) Whoever knowingly violates a land-use covenant by converting nonresidential property to residential property is guilty of a felony, and, upon conviction thereof, shall be fined not more than $25,000, imprisoned for not more than five years, or both.

§22-22-15. Reopeners.

Any person who completes remediation in compliance with this article shall not be required to undertake additional remediation actions for contaminants subject to the remediation, unless the Secretary demonstrates that:

(a) Fraud was committed in demonstrating attainment of a standard at the site that resulted in avoiding the need for further remediation of the site;

(b) New information confirms the existence of an area of a previously unknown contamination which contains contaminants that have been shown to exceed the standards applied to the previous remediation at the site;

(c) The level of risk is increased significantly beyond the established level of protection at the site due to substantial changes in exposure conditions, such as a change in land use or new information is obtained about a contaminant associated with the site which revises exposure assumptions beyond the acceptable range. Any person who changes the use of the property causing the level of risk to increase beyond established protection levels shall be required by the Department to undertake additional remediation measures under the provisions of this article;

(d) The release occurred after the effective date of this article on a site not used for industrial activity prior to the effective date of this article; the remedy relied, in whole or in part, upon institutional or engineering controls instead of treatment or removal of contamination; and treatment, removal, or destruction has become technically and economically practicable; or

(e) The remediation method failed to meet the remediation standard or combination of standards.

In the event that any of the foregoing circumstances occur, the remediation agreement will be reopened and revised to the extent necessary to return the site to its previously agreed to state of remediation or other appropriate standard.

§22-22-16. Duty of assessor and citizens to notify Secretary when change of property use occurs.

If an assessor in any county becomes aware of a change of remediated property use from nonresidential property to residential, the assessor shall check the land record of the county to ascertain if a land-use covenant appears to have been violated. Should it appear that a violation has occurred, the assessor shall notify the Secretary in writing of the suspected violation. If any citizen becomes aware of a change of property use from nonresidential to residential, the citizen may check the land record of the county to ascertain if a land use covenant appears to have been violated and may notify the Secretary in writing. The Secretary shall then investigate and proceed with any necessary enforcement action.

§22-22-17. Public notification for brownfields.

[Repealed.]

§22-22-18. Environmental liability protection.

(a) Any person demonstrating compliance with the applicable standards established in section three of this article, whether by remediation or where the site assessment shows that the contamination at the site meets applicable standards, shall be relieved of further liability for the remediation of the site under this chapter. Contamination identified in the remediation agreement submitted to and approved by the Department is not subject to citizen suits or contribution actions. The protection from further remediation liability provided by this article applies to the following persons:

(1) The current or future owner or operator of the site, including development authorities and fiduciaries who participated in the remediation of the site;

(2) A person who develops or otherwise occupies the site;

(3) A successor or assign of any person to whom the liability protection applies;

(4) A public utility, as defined in §24-1-2 of this code, and for the purpose of this article, a utility engaged in the storage and transportation of natural gas, to the extent the public utility performs activities on the site;

(5) A remediation contractor;

(6) A licensed remediation specialist; and

(7) A lender or developer who engages in the routine practices of commercial lending, including, but not limited to, providing financial services, holding of security interests, workout practices, foreclosure, or the recovery of funds from the sale of a site.

(b) A person shall not be considered a person responsible for a release or a threatened release of contaminants simply by virtue of conducting or having a site assessment conducted. Nothing in this section relieves a person of any liability for failure to exercise due diligence in performing a site assessment.

(c) The Secretary may, consistent with programs developed under federal law, make a determination to limit the liability of lenders, innocent purchasers or landowners, de minimis contributors, or others who have grounds to claim limited responsibility for a containment or cleanup that may be required pursuant to the Hazardous Waste Management Act §22-18-1, et seq. of this code, the Water Pollution Control Act §22-11-1, et seq. of this code, the Groundwater Protection Act §22-12-1, et seq. of this code, or any other applicable law.

(d) A person who is a bona fide prospective purchaser shall not be held liable for a containment or cleanup that may be required at a brownfield site pursuant to the Hazardous Waste Management Act §22-18-1, et seq. of this code, the Water Pollution Control Act §22-11-1, et seq. of this code, the Groundwater Protection Act §22-12-1, et seq. of this code, or any other applicable law, if:

(1) The person did not cause, contribute, or consent to the release or threatened release;

(2) The person is not liable or potentially liable through any direct or indirect familial relationship or any contractual, corporate, or financial relationship or is not the result of a reorganization of a business entity that was potentially liable;

(3) The person exercises appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to stop any continuing release, prevent any threatened future release, and prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substances; and

(4) The person does not impede the performance of any response action.

(e) A person who is an innocent land owner who holds title, security interest, or any other interest in a brownfield site shall not be held liable for a containment or cleanup that may be required at a brownfield site pursuant to the Hazardous Waste Management Act §22-18-1, et seq. of this code, the Water Pollution Control Act §22-11-1, et seq. of this code, the Groundwater Protection Act §22-12-1, et seq. of this code, or any other applicable law if:

(1) The person did not cause, contribute, or consent to the release or threatened release;

(2) The person is not liable or potentially liable through any direct or indirect familial relationship or any contractual, corporate, or financial relationship or is not the result of a reorganization of a business entity that was potentially liable;

(3) The person made all appropriate inquiries into the previous uses of the facility in accordance with generally accepted good commercial and customary standards and practices, including those established by federal law;

(4) The person exercises appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to stop any continuing release, prevent any threatened future release, and prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substances;

(5) The person does not impede the performance of any response action; and either

(6) At the time the person acquired the interest, he or she did not know and had no reason to know, that any hazardous substances had been or were likely to have been disposed of on, in, or at the site, or

(7) The person is a government entity that acquired the site by escheat or through other involuntary transfer or acquisition.

(f) A person that owns real property that is contiguous to or otherwise similarly situated with respect to, and that is or may be contaminated by a release or threatened release of a hazardous substance from real property that is not owned by that person shall not be considered liable for a containment or cleanup that may be required pursuant to the Hazardous Waste Management Act §22-18-1, et seq. of this code, the Water Pollution Control Act §22-11-1, et seq. of this code, the Groundwater Protection Act §22-12-1, et seq. of this code, or any other applicable law if the person did not cause, contribute, or consent to the release or threatened release, if the person is not liable or potentially liable through any direct or indirect familial relationship or any contractual, corporate, or financial relationship or is not the result of a reorganization of a business entity that was potentially liable, and if such person provides full cooperation, assistance, and access to persons that are authorized to conduct response actions at the facility from which there has been a release.

(g) The provisions of this section shall not otherwise limit the authority of the Secretary to require any person responsible for the contamination or pollution to contain or remediate sites where solid or hazardous waste or other substances have been improperly managed.

§22-22-19. Establishing and limiting the responsibilities of remediation contractors.

(a) A person who is engaged in the business of remediation contractor under this article is not responsible for a release or threatened release of contaminants at the site described in the voluntary remediation agreement for work properly performed pursuant to the agreement.

(b) A person who is engaged in the business of remediation contractor under this article is not liable for any harm, damage or injury caused by a release of a contaminant which occurred prior to the contractor undertaking work at the site.

(c) Limitation of liability, pursuant to subsections (a) and (b) of this section does not apply to a release or threatened release of contaminants at the site described in the voluntary remediation agreement that is directly caused by an act or omission which constitutes gross negligence or by the willful misconduct of the remediation contractor.

(d) A remediation contractor is not required to obtain a permit for remediation activities, if a permit is required under article five, eleven, fifteen or eighteen of this chapter. However, an owner or operator of the site to be remediated is not relieved of the permit requirements, if any, for remediation activities undertaken at the site. A remediation contractor must comply with all applicable state and federal laws in the transportation, treatment, storage and disposal of contaminants generated as a consequence of the remediation activities.

(e) A remediation contractor is not a "generator" for the purposes of the generator assessments imposed pursuant to article twenty of this chapter.

§22-22-20. Affirmative defenses.

Any person who is alleged to have violated an environmental law or the common law equivalent, which occurred while acting pursuant to this article, may affirmatively plead the following in response to an alleged violation:

(a) An act of God;

(b) An intervening act of a public agency;

(c) Migration from property owned by a third party;

(d) Actions taken or omitted in the course of rendering care, assistance, or advice in accordance with the environmental laws or at the direction of the Department;

(e) An act of a third party who was not an agent or employee of the lender, fiduciary, developer, remediation contractor, or development authority; or

(f) If the alleged liability for a lender, fiduciary, developer, or development authority arises after foreclosure, and the lender, fiduciary, developer, or development authority exercised due care with respect to the lender's, fiduciary's, developer's, or development authority's knowledge about the contaminants, and took reasonable precautions based upon such knowledge against foreseeable actions of third parties and the consequences arising therefrom. A lender, fiduciary, developer, remediation contractor, or development authority may avoid liability by proving any other defense which may be available to it.

§22-22-21. Savings clause.

Nothing in this article shall affect the rights, duties, defenses, immunities or causes of action under other statutes or the common law of this state which may be applicable to persons conducting remediation of a site.

§22-22A-1. Short title.

This article may be cited as the West Virginia Limited Liability for Persons Responding to Oil Discharges Act.

§22-22A-2. Definitions.

For the purposes of this article:

(a) "Damages" means damages of any kind for which liability may exist under the laws of this state resulting from, arising out of, or related to the discharge or threatened discharge of oil;

(b) "Discharge" means any emission (other than natural seepage), intentional or unintentional, and includes, but is not limited to, spilling, leaking, pumping, pouring, emitting, emptying or dumping;

(c) "Federal on-scene coordinator" means the federal official designated by the lead agency or predesignated by the United States environmental protection agency or the United States coast guard to coordinate and direct responses under the national contingency plan (NCP);

(d) "National contingency plan" means the national contingency plan prepared and published under Section 311(d) of the federal Water Pollution Control Act, 33 U.S.C. §1321(d), as amended by the Oil Pollution Act of 1990, Public Law No. 101-380, 104 Stat. 484 (1990) as in effect as of the effective date of this article;

(e) "Oil" means oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes other than dredged spoil;

(f) "Person" means an individual, corporation, partnership, association, state, municipality, commission or political subdivision of a state or any interstate body;

(g) "Remove" or "removal" means containment and removal of oil or a hazardous substance from water and shorelines or the taking of other actions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife and public and private property, shorelines and beaches;

(h) "Removal costs" means the costs of removal that are incurred after a discharge of oil has occurred or, in any case in which there is a substantial threat of a discharge of oil, the costs to prevent, minimize or mitigate oil pollution from such an incident; and

(i) "Responsible party" means a responsible party as defined under §1001 of the Oil Pollution Act of 1990, Public Law No. 101-380, 104 Stat. 484 (1990).

§22-22A-3. Exemption from liability.

(a) Notwithstanding any other provision of this code to the contrary, a person engaged in removal activities is not liable for removal costs or damages which result from acts or omissions in the course of rendering care, assistance or advice consistent with the national contingency plan or as otherwise directed by the federal on-scene coordinator or by the state official charged with responsibility for oil discharge responses.

(b) Subsection (a) of this section does not apply:

(1) To a responsible party;

(2) With respect to personal injury or wrongful death; or

(3) If the person is grossly negligent or engages in willful misconduct.

(c) A responsible party is liable for any removal costs and damages that another person is relieved of under the provisions of subsection (a) of this section.

(d) Nothing in this section affects the liability of a responsible party for oil spill response under state law.

§22-22B-1. Short title.

This article may be cited as the Uniform Environmental Covenants Act.

§22-22B-2. Definitions.

As used in this article and insofar as they are not in conflict with article twenty-two of this chapter, the following terms shall mean:

(1) "Activity and use limitations" means restrictions or obligations created under this article with respect to real property.

(2) "Agency" means the Department of Environmental Protection or any federal agency that determines or approves the environmental response project pursuant to which the environmental covenant is created.

(3) "Common interest community" means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance or improvement of other real property described in a recorded covenant that creates the common interest community.

(4) "Environmental covenant" means a servitude arising under an environmental response project that imposes activity and use limitations.

(5) "Environmental response project" means a plan or work performed for environmental remediation of real property and conducted:

(A) Under a federal or state program governing environmental remediation of real property, including article twenty-two of this chapter;

(B) Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency; or

(C) Under a state voluntary clean-up program authorized in article twenty-two of this chapter.

(6) "Holder" means the grantee of an environmental covenant as specified in subsection (a), section three of this article.

(7) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency or instrumentality or any other legal or commercial entity.

(8) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(9) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.

§22-22B-3. Nature of rights; subordination of interests.

(a) Any person, including a person that owns an interest in the real property, the agency, or a municipality or other unit of local government, may be a holder. An environmental covenant may identify more than one holder. The interest of a holder is an interest in real property.

(b) A right of an agency under this article or under an environmental covenant, other than a right as a holder, is not an interest in real property.

(c) An agency is bound by any obligation it assumes in an environmental covenant, but an agency does not assume obligations merely by signing an environmental covenant. Any other person that signs an environmental covenant is bound by the obligations the person assumes in the covenant, but signing the covenant does not change obligations, rights or protections granted or imposed under law other than this article except as provided in the covenant.

(d) The following rules apply to interests in real property in existence at the time an environmental covenant is created or amended:

(1) An interest that has priority under other law is not affected by an environmental covenant unless the person that owns the interest subordinates that interest to the covenant.

(2) This article does not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the covenant.

(3) A subordination agreement may be contained in an environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners' association.

(4) An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that person's interest but does not by itself impose any affirmative obligation on the person with respect to the environmental covenant.

§22-22B-4. Contents of environmental covenant.

(a) An environmental covenant must:

(1) State that the instrument is an environmental covenant executed pursuant to this article;

(2) Contain a legally sufficient description of the real property subject to the covenant;

(3) Describe the activity and use limitations on the real property;

(4) Identify every holder;

(5) Be signed and notarized by the agency, every holder, and unless waived by the agency every owner of the fee simple of the real property subject to the covenant; and

(6) Identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant.

(b) In addition to the information required by subsection (a) of this section, an environmental covenant may contain other information, restrictions and requirements agreed to by the persons who signed it, including any:

(1) Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant;

(2) Requirements for periodic reporting describing compliance with the covenant;

(3) Rights of access to the property granted in connection with implementation or enforcement of the covenant;

(4) A brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure and the location and extent of the contamination;

(5) Limitation on amendment or termination of the covenant in addition to those contained in sections nine and ten of this article; and

(6) Rights of the holder in addition to its right to enforce the covenant pursuant to section eleven of this article.

(c) In addition to other conditions for its approval of an environmental covenant, the agency may require those persons specified by the agency who have interests in the real property to sign the covenant.

§22-22B-5. Validity; effect on other instruments.

(a) An environmental covenant that complies with this article runs with the land.

(b) An environmental covenant that is otherwise effective is valid and enforceable even if:

(1) It is not appurtenant to an interest in real property;

(2) It can be or has been assigned to a person other than the original holder;

(3) It is not of a character that has been recognized traditionally at common law;

(4) It imposes a negative burden;

(5) It imposes an affirmative obligation on a person having an interest in the real property or on the holder;

(6) The benefit or burden does not touch or concern real property;

(7) There is no privity of estate or contract;

(8) The holder dies, ceases to exist, resigns or is replaced; or

(9) The owner of an interest subject to the environmental covenant and the holder are the same person.

(c) An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before the effective date of the enactment of this article during the regular session of the Legislature in two thousand five is not invalid or unenforceable because of any of the limitations on enforcement of interests described in subsection (b) of this section or because it was identified as an easement, servitude, deed restriction or other interest. This article does not apply in any other respect to such an instrument.

(d) This article does not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law of this state.

§22-22B-6. Relationship to other land-use law.

This article does not authorize a use of real property that is otherwise prohibited by zoning, by law other than this article regulating use of real property, or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property which are authorized by zoning or by law other than this article.

§22-22B-7. Notice.

(a) A copy of an environmental covenant shall be provided by the persons and in the manner required by the agency to:

(1) Each person that signed the covenant;

(2) Each person holding a recorded interest in the real property subject to the covenant;

(3) Each person in possession of the real property subject to the covenant;

(4) Each municipality or other unit of local government in which real property subject to the covenant is located; and

(5) Any other person the agency requires.

(b) The validity of a covenant is not affected by failure to provide a copy of the covenant as required under this section.

§22-22B-8. Recording.

(a) An environmental covenant and any amendment or termination of the covenant must be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee.

(b) Except as otherwise provided in subsection (c), section nine of this article, an environmental covenant is subject to the laws of this state governing recording and priority of interests in real property.

§22-22B-9. Duration; amendment by court action.

(a) An environmental covenant is perpetual unless it is:

(1) By its terms limited to a specific duration or terminated by the occurrence of a specific event;

(2) Terminated by consent pursuant to section ten of this article;

(3) Terminated pursuant to subsection (b) of this section;

(4) Terminated by foreclosure of an interest that has priority over the environmental covenant; or

(5) Terminated or modified in an eminent domain proceeding, but only if:

(A) The agency that signed the covenant is a party to the proceeding;

(B) All persons identified in subsections (a) and (b), section ten of this article are given notice of the pendency of the proceeding; and

(C) The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.

(b) If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in subsections (a) and (b), section ten of this article have been given notice, may terminate the covenant or reduce its burden on the real property subject to the covenant. The agency's determination or its failure to make a determination upon request is subject to review pursuant to article five, chapter twenty-nine-a of this code.

(c) Except as otherwise provided in subsections (a) and (b) of this section, an environmental covenant may not be extinguished, limited or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.

(d) An environmental covenant may not be extinguished, limited, or impaired except as authorized by this article.

§22-22B-10. Amendment or termination by consent.

(a) An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by:

(1) The agency;

(2) Unless waived by the agency, the current owner of the fee simple of the real property subject to the covenant;

(3) Each person that originally signed the covenant, unless the person waived in a signed record the right to consent or a court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; and

(4) Except as otherwise provided in subdivision (2), subsection (d) of this section, the holder.

(b) If an interest in real property is subject to an environmental covenant, the interest is not affected by an amendment of the covenant unless the current owner of the interest consents to the amendment or has waived in a signed record the right to consent to amendments.

(c) Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder is an amendment.

(d) Except as otherwise provided in an environmental covenant:

(1) A holder may not assign its interest without consent of the other parties;

(2) A holder may be removed and replaced by agreement of the other parties specified in subsection (a) of this section; and

(e) A court of competent jurisdiction may fill a vacancy in the position of holder.

§22-22B-11. Enforcement of environmental covenant.

(a) A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by:

(1) A party to the covenant;

(2) The agency or, if it is not the agency, the Department of Environmental Protection;

(3) Any person to whom the covenant expressly grants power to enforce;

(4) A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant; or

(5) A municipality or other unit of local government in which the real property subject to the covenant is located.

(b) This article does not limit the regulatory authority of the agency or the Department of Environmental Protection under law other than this article with respect to an environmental response project.

(c) A person is not responsible for or subject to liability for environmental remediation solely because it has the right to enforce an environmental covenant.

§22-22B-12. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§22-22B-13. Relation to Electronic Signatures in Global and National Commerce Act.

This article modifies, limits or supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001, et seq.) but does not modify, limit or supersede Section 101 of said Act (15 U.S.C. Section 7001(a)) or authorize electronic delivery of any of the notices described in Section 103 of said Act (15 U.S.C. Section 7003(b)).

§22-22B-14. Severability.

If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.

§22-23-1. Findings and purposes.

The West Virginia Legislature hereby finds that:

(a) The United States is a signatory to the 1992 United Nations Framework Convention on Global Climate Change Treaty("FCCC");

(b) A protocol to expand the scope of the FCCC was negotiated in December, 1997in Kyoto, Japan ("Kyoto Protocol"), requiring the United States to reduce emissions of greenhouse gases such as carbon dioxide and methane by seven percent from 1990 emission levels during the years 2008 to 2012, with similar reduction obligations for other major industrial nations;

(c) Developing nations, including China, India, Mexico, Indonesia and Brazil, are exempt from greenhouse gas emission limitation requirements in the FCCC;

(d) Developing nations refused in the Kyoto negotiations to accept any new commitments for greenhouse gas emission limitations through the Kyoto Protocol or other agreements;

(e) With respect to new commitments under the FCCC, President William J. Clinton pledged on October 22, 1997, that "The United States will not assume binding obligations unless key developing nations meaningfully participate in this effort";

(f) On July 25, 1997, the United States Senate adopted Senate Resolution Number Ninety-eight by a vote of ninety-five to zero, expressing the sentiment of the Senate that "the United States should not be a signatory to any protocol to other agreement regarding, the Framework Convention on Climate Change... which would require the advice and consent of the Senate to ratification, and which would mandate new commitments to mitigate greenhouse gas emissions for the Developed Country Parties, unless the protocol or other agreement also mandates specific scheduled commitments within the same compliance period to mitigate greenhouse gas emissions for Developing Country Parties";

(g) The Kyoto Protocol fails to meet the tests established for acceptance of new climate change commitments by President Clinton and by United States Senate Resolution Number ninety-eight;

(h) Achieving the emission reductions proposed by the Kyoto Protocol would require more than a thirty-five percent reduction in projected United States carbon dioxide and other greenhouse gas emissions during the period between 2008 to 2012;

(i) Developing countries exempt from emission limitations under the Kyoto Protocol are expected to increase their rates of fossil fuel use over the next two decades, and to surpass the United States and other industrialized countries in total emissions of greenhouse gases;

(j) Increased emissions of greenhouse gases by developing countries would offset any potential environmental benefits associated with emissions reductions achieved by the United States and by other industrial nations;

(k) Economic impact studies by the United States government estimate that legally binding requirements for the reduction of United States greenhouse gases to 1990, emission levels would result in the loss of more than nine hundred thousand jobs in the United States, sharply increased energy prices, reduced family incomes and wages, and severe losses of output in energy-intensive industries important to the West Virginia economy such as aluminum, steel, rubber, chemicals and utilities;

(l) The failure to provide for commitments by developing countries in the Kyoto Protocol creates an unfair competitive imbalance between industrial and developing nations, potentially leading to the transfer of jobs and industrial development from the United States to developing countries;

(m) Federal implementation of the Kyoto Protocol, if ratified by the United States Senate, would entail new congressional legislation whose form and requirements cannot be predicted at this time, but could include national energy taxes or emission control allocation schemes that would preempt state-specific programs intended to reduce emissions of greenhouse gases;

(n) Piecemeal or other uncoordinated state regulatory initiatives intended to reduce emissions of greenhouse gases may be inconsistent with subsequent congressional determinations concerning the Kyoto Protocol, and with federal legislation implementing the Kyoto Protocol;

(o) Individual state responses to the Kyoto Protocol, including development of new regulatory programs intended to reduce greenhouse gas emissions, are premature prior to Senate ratification of that Protocol, in its current or amended form, and congressional enactment of related implementing legislation.

§22-23-2. Restrictions on state rules related to greenhouse gas emissions.

(a) The West Virginia Division of Environmental Protection shall refrain from proposing or promulgating any new rule intended, in whole or in part, to reduce emissions of greenhouse gases from the residential, commercial, industrial, electric utility or transportation sectors in order to comply with the Kyoto Protocol;

(b) In the absence of an act of the Legislature of the State of West Virginia approving same, the West Virginia Division of Environmental Protection shall not submit to the United States environmental protection agency or to any other agency of the federal government any legally enforceable commitments related to the reduction of greenhouse gases, as such gases are defined by the Kyoto Protocol;

(c) Nothing in this section shall be construed to limit or to impede state or private participation in any on-going voluntary initiatives to reduce emissions of greenhouse gases, including, but not limited to, the federal environmental protection agency's "Green Lights" program, the federal department of energy's climate challenge program, and similar state and federal initiatives relying on voluntary participation.

(d) This article shall remain in effect until repealed by an Act of the Legislature of the State of West Virginia, or until ratification of the Kyoto Protocol by the United States Senate and enactment of federal legislation implementing the Kyoto Protocol.

§22-23A-1. Findings.

The Legislature finds:

(1) The coal industry is and has been for many years an integral part of the economic and social fabric of the state;

(2) That whole communities in this state rely in large part, if not completely, on the coal industry for their continuing vitality;

(3) That over the last decade changes in the mining industry have necessitated the development of diverse mining techniques;

(4) The coal industry remains essential to economic growth and progress in West Virginia and the United States. Coal continues to sustain our economy and provides the financial security as future diversity and expansion of our job base is explored;

(5) The state of West Virginia, through the Division of Environmental Protection, entered into an agreement on December 23, 1998, which imposed additional controls and oversight on the states' mine permitting process by the U.S. corps of engineers, U.S. environmental protection agency, U.S. office of surface mining and the U.S. fish and wildlife service;

(6) The agreement of December 23, 1998 further authorized the Division of Environmental Protection, in conjunction with the U.S. environmental protection agency, the U.S. fish and wildlife service, the U.S. army corps of engineers and the U.S. office of surface mining to undertake a two-year study of the effects of mountaintop mining practices which remains incomplete as of the effective date of this article;

(7) The state has committed significant funding and other resources to the study;

(8) The study is unprecedented in this country in its purpose and scope;

(9) The environmental impact statement which will be prepared upon the completion of the study may give rise to consideration of new or revised regulations, policies, guidelines or requirements which are untried or untested anywhere in this country;

(10) It is imperative that balance be sought between state rules designed to regulate and protect the environment and the state regulations designed to enhance the ability of the state to continue to market West Virginia coal throughout the nation and the world; and

(11) Requiring West Virginia, through new or amended policies, regulations, enforcement or permitting actions to meet requirements more stringent than those otherwise applicable in other states by the federal government and unnecessary for environmental protection would unfairly affect interstate competition for new mining development and employment opportunities.

Wherefore the Legislature finds that prior to the implementation of any recommendation arising from the study that the Legislature has an obligation to review the same to protect the interests of the state and the citizens.

§22-23A-2. Requiring Department of Environmental Protection to refrain from implementing or adopting rules or making certain commitments absent legislative approval; reporting required.

(a) The Division of Environmental Protection may not enter into any legally enforceable commitments related to the implementation of any recommendation which results from the mountaintop mining/valley fill environmental impact statement with any agency of the federal government unless the terms of the commitment are reported to the Legislature.

(b) The Division of Environmental Protection may not adopt or modify any rule, in whole or in part, to implement a recommendation resulting from the mountaintop mining/valley fill environmental impact statement except by legislative rule promulgated pursuant to article three, chapter twenty-nine-a of this code.

(c) Within ninety days of receipt of any final recommendation from any agency of the federal government related to the mountaintop mining/valley fill environmental impact statement, the director of the West Virginia Division of Environmental Protection shall forward such recommendation, embodied in a report, along with all scientific facts or technical evidence relating to and substantiating such recommendation, to the Governor, President of the Senate and the Speaker of the House of Delegates.

§22-24-1. Legislative findings, intent and purpose.

The Legislature hereby finds and declares that, in this state the protection and improvement of the environment, and the sustainability of small businesses, would be collectively enhanced by the establishment of a revolving low-interest small business environmental loan program, to provide partial relief from the burden small businesses face from compliance with existing and new state and federal environmental protection rules and regulations. The Legislature intends, in providing such a loan program for small businesses, that the program will further enable small businesses to aggressively comply with or exceed environmental obligations and requirements and thereby continue as a positive economic force in the State of West Virginia.

§22-24-2. Definitions.

(a) "Authority" means the West Virginia economic development authority established in article fifteen, chapter thirty-one of this code.

(b) "Director" means the director of the West Virginia Division of Environmental Protection.

(c) "Division" means the West Virginia Division of Environmental Protection as established in article one of this chapter.

(d) "Eligible borrower" means a small business as defined in subsection (h) of this section that is required or needs to conduct a qualifying environmental project as defined in subsection (g) of this section. An eligible borrower also means a small business that desires to refinance the remaining balance of a debt that was incurred between January 1, 1992, and until two years after the effective date of this article, and that meets, or would have met, at the time of the original loan application, the requirements of this subsection. The refinancing option is not available for applications received by the authority more than three years after the effective date of this article. Funds available for refinanced loans may not, at any time, exceed forty percent of the total funds available plus the outstanding balance of funded loans.

(e) "Environmental project" means:

(1) Any environmental equipment purchases and installations of the equipment;

(2) Any associated transportation, technical or consulting services for installation or modification of environmental equipment;

(3) Any equipment, purchase and installation necessary to effect a process change that in the director's judgment yields significant environmental benefits; or

(4) Any combination of subdivisions (1), (2) or (3) of this subsection.

(f) "Pollution prevention" means the reduction or elimination of pollutants at the source through process modification, material substitution, in-process recycling, reduction of raw material use or other source reduction or elimination opportunities.

(g) "Qualifying environmental project" means an environmental project as described in subsection (e) of this section that is to be undertaken at a location in West Virginia and used for the purpose of:

(1) Effecting pollution elimination, minimization, prevention, recycling or abatement measures;

(2) Improving conditions or operations environmentally or substantially improving compliance with local, city, state, interstate or federal rules, regulations or laws pertaining to the environment and human health; or

(3) Purchasing equipment to establish environmental information, computing, consulting or laboratory services.

(h) "Small business" means a business that:

(1) Is properly registered with the appropriate agencies to do business in this state;

(2) Is actively conducting business in this state;

(3) Is current with all workers' compensation and unemployment premiums and state taxes; and

(4) Employs less than fifty full-time employees as defined in subsection (i) of this section within the entire company, business or corporation inside and outside this state.

(i) "Total number of full-time employees" means all full-time employees, plus all part-time employees counted as full-time employee equivalents, plus all full and part-time equivalent employees providing any type of service by contract or by any other arrangement.

§22-24-3. Loan application requirements.

(a) Any eligible small business may apply for a small business environmental loan by submitting two identical copies of an application to the authority, on forms provided by the authority.

(b) The director shall determine environmental program qualification as provided by section two of this article, and based on the following factors:

(1) Pertinent environmental benefits of the project, including expected eliminations or reductions of regulated pollutants, solid wastes, hazardous wastes and in the use of toxic and hazardous chemicals, as well as expected benefits from recycling programs, and pollution prevention measures;

(2) The degree of compliance with applicable environmental rules, regulations, laws and statutes; and

(3) Borrower's past environmental compliance performance, including history of compliance, violations, permitting difficulties and reporting record.

§22-24-4. Loan conditions.

A loan made to an eligible borrower as provided by this article shall:

(a) Have an interest rate not to exceed one half of the federal prime interest rate, but in no case may the annual rate be less than four percent: Provided, That environmental loan projects that have been determined by the director to be at a minimum, seventy-five percent "pollution prevention," shall be authorized an additional one half of one percent annual interest rate reduction and the annual interest for these special pollution prevention qualifying environmental projects may be as low as three and one-half percent;

(b) Have repayment terms not to exceed ten years;

(c) Have collateral terms acceptable to the authority; and

(d) Be in an amount of not less than $5,000 nor more than $150,000; but in no case may the amount exceed ninety percent of the cost of the project.

§22-24-5. Small business environmental revolving loan account.

(a) The small business environmental revolving loan account is hereby continued in the authority and shall be made available for environmental loans defined by this article for any type of qualifying environmental project. Loans may be issued only during the five-year period commencing on the effective date of this article unless the time period is otherwise extended by the Legislature. The administration of this loan program is authorized for one year beyond the last payment date for any outstanding loan.

(b) The environmental revolving loan account shall be funded by appropriations from the Legislature and, at the director's discretion, by using portions of penalties and fines that are collected from various sources, including violators that economically benefited by noncompliance and the director is also authorized to accept gifts, donations, contributions, bequests or devises of money, security or property for deposit in the account: Provided, That the maximum value of all active outstanding loans, combined with funds in reserve at any time, may not exceed $5 million.

(c) Interest income from the small business environmental loan program as well as appropriations from the Legislature shall be used to defray the operating costs of the program, including, but not limited to, administration, facilities, salaries and travel. Any excess interest income shall be used to reestablish the loan program to its maximum authorized limit of $5 million, with additional excesses returned to the state's general revenue account. If interest income is not projected to provide the necessary operating funds for all aspects of the small business environmental loan program for any one year, the authority shall request the necessary funding in the annual budget request.

§22-24-6. Loan processing.

The authority shall: (a) Process small business environmental loan applications and assure that a copy is forwarded to the director for eligibility review; (b) confirm that the director has certified the environmental acceptability of the project; (c) verify the borrower's eligibility as provided by section two of this article; (d) evaluate the borrower's financial stability, needs and ability to repay based upon an appropriate examination of financial information, including, but not limited to, income and credit histories, income tax returns, financial statements and collateral offered to secure the loan; (e) process loans for payments; and (f) establish loan processing procedures that include, but are not limited to, loan approvals, accounting, authorizations for payments, loan repayments and auditing of the small business environmental loan program. The authority shall implement reporting requirements that include the total number of full-time employees of the loan recipient on September 30, of each calendar year for the term of the loan.

The authority shall act upon loan requests within forty-five days of receipt of a complete application as determined by the authority.

§22-25-1. Legislative findings.

The Legislature finds that:

(1) Regulated and nonregulated entities that demonstrate a commitment to the environment by going beyond compliance with environmental laws and rules positively impact the quality of life for all citizens of the state by improving the economy and the environment by increasing consumer and public confidence, boosting management and employee morale, and operating in a safe and sensible manner that lessens impacts on the environment.

(2) While West Virginia's existing environmental laws play an important role in protecting the environment, environmental protection could be further enhanced by authorizing innovative advances in environmental regulatory methods and approaches.

(3) Enhanced public involvement allows the public and community to meaningfully participate in finding solutions for environmental issues in their community while maintaining the vitality of the local and state economy and strengthening ties between businesses, nonbusiness entities and community.

(4) Increased use of pollution prevention strategies, more cost-effective options for compliance with environmental standards, improvement of environmental performance, and reduction in occurrences of noncompliance with environmental standards can be achieved through the establishment and implementation of a voluntary environmental excellence program pursuant to this article. This voluntary program will provide entities with the opportunity to enter into an agreement with the Department of Environmental Protection through which the department shall grant recognition and other benefits to participating entities that comply with a prescribed number of program elements established by the secretary of the Department of Environmental Protection designed to reduce environmental impacts beyond those achieved by compliance with environmental laws and permits alone.

§22-25-2. Purpose.

The purpose of this article is to authorize the Department of Environmental Protection to establish and administer an environmental excellence program to promote, reward, and encourage superior environmental performance in this state. The environmental excellence program will establish a system to encourage voluntary environmental performance that will exceed existing regulatory standards for health and the environment and result in continual improvement in the state's environment, economy, and quality of life. The program should, if practical, be compatible with other federal programs which create incentives for achieving environmental performance beyond the regulatory requirements, such as the United States environmental protection agency's national performance track program. The environmental excellence program will be established and implemented to accomplish the following:

(1) Encourage facility owners and operators to assess the environmental impact of their operations;

(2) Encourage innovation by and measure success through facility owners and operators setting measurable and verifiable goals;

(3) Increase public participation and encourage stakeholder consensus in the development of innovative environmental regulatory approaches and methods and in monitoring the environmental performance of projects under this article;

(4) Focus resources toward achieving positive environmental goals that are important to the community and the state;

(5) Report environmental performance information and ambient environmental data to the public in a manner that is accurate, timely, credible, relevant and usable to interested parties;

(6) Provide for the measurement of environmental performance in terms of accomplishing goals and objectives, and require the reporting of those results;

(7) Provide facility owners and operators with flexibility to implement the most effective pollution prevention, source reduction, or other pollution reduction strategies for their particular facilities, while complying with verifiable and enforceable pollution limits;

(8) Encourage superior environmental performance and continuous improvement toward sustainable levels of resource usage and minimization of pollution discharges, emissions and releases;

(9) Promote the transfer of technological and practical environmental innovations that improve environmental performance in a more efficient, effective, and safe manner; and

(10) Strive to lower transaction costs associated with environmental performance.

§22-25-3. Definitions.

As used in this article, unless the context otherwise requires:

(a) "Cross-media transfer" means a pollutant transfer from one environmental media to another, such as air to water.

(b) "Department" means the Department of Environmental Protection.

(c) "Environmental goals" means the environmental performance objectives proposed by a qualified applicant that demonstrates superior environmental performance and which may support variances from environmental laws.

(d) "Environmental laws" means the following articles of chapter twenty-two of the Code of West Virginia, two thousand two, as amended: Four, five, eleven, twelve, fifteen, sixteen, seventeen and eighteen and legislative rules adopted under one of those articles, or a policy, rule, permit, license, other approval or order issued by the department under one of those articles. "Environmental laws" do not include any provision of the Code of West Virginia or of any municipal ordinance or enactment that regulates the selection of a location for a new facility.

(e) "Environmental management system" means a formal set of voluntary procedures and policies used to evaluate environmental performance and to achieve measurable or noticeable improvements in that environmental performance through planning and changes in operations, based on a commitment to superior environmental performance. An environmental management system is the part of the overall management system that includes organizational structure, planning activities, responsibilities, practices, procedures, processes and resources for developing, implementing, achieving, reviewing and maintaining an environmental policy. An environmental management system includes the following elements:

(1) Adoption of an environmental policy that includes a commitment to maintain or exceed compliance with environmental and other requirements, pollution prevention, and continual improvement;

(2) An analysis of the environmental aspects and impacts of the organization's activities;

(3) Significance ranking of environmental aspects and procedures;

(4) Plans and procedures to achieve, maintain and exceed requirements set forth by environmental laws;

(5) Identification of all legal requirements applicable to the organization's environmental performance;

(6) Setting environmental objectives and developing appropriate environmental management programs to meet the objectives;

(7) Establishment of a structure for operational control and responsibility for environmental performance;

(8) An employee training program to develop awareness of and competence to manage environmental issues;

(9) A plan for taking preventive, corrective and emergency action to address environmental problems;

(10) A communication plan to collaborate with employees, the public and department on the design of the projects and activities to achieve superior environmental performance;

(11) Document control and record keeping of environmental performance;

(12) Third party audits of the environmental management system;

(13) Third party audits of environmental compliance;

(14) Senior management review;

(15) Monitoring and measurement of environmental performance; and

(16) Other criteria as established by the secretary.

(f) "Environmental management system audit" means a systematic and documented third party verification process of evaluating whether an organization's environmental management system conforms to the criteria set forth by the department.

(g) "Environmental performance agreement" means an agreement entered into between the department and a participant of the program that specifies the participant's commitment to superior environmental performance, enhanced public involvement, and the incentives to be provided to the participant.

(h) "Environmental performance baseline" means the actual emissions, discharges, and impact to the environment by a facility at the time the application to participate in the environmental excellence program is filed with the department.

(i) "Hazardous substance" or "toxic substance" means those chemicals defined as hazardous substances under section 313 of the federal Superfund Amendments and Reauthorization Act of 1986 (SARA Title III), including any subsequent amendments, and sections 101(14) and 102 of the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended.

(j) "Participant" means a qualified applicant that has been admitted into the environmental excellence program through the execution of an environmental performance agreement with the department. Participant is limited to the site or facility where the environmental goals will be achieved and does not include the entire company where the company operates multiple sites or facilities.

(k) "Pollution prevention" means any practice that reduces the use of any hazardous substance or amount of a pollutant or contaminant prior to reuse, recycling, treatment, or disposal, and reduces the hazards to public health and the environment associated with the use and release of hazardous substances, pollutants or contaminants. Pollution prevention does not include cross-media pollution transfers that do not result in a net decrease of discharge, emission or impact to the environment.

(l) "Program" means the environmental excellence program created pursuant to this article.

(m) "Qualified applicant" means any regulated or nonregulated facility of a government entity, corporation, partnership, sole proprietorship, municipality, county, city and county, or special district located and doing business in this state that meets the requirements for participation in the program set forth by this article.

(n)"Regulated entity" means an entity that requires a permit issued under one of the environmental laws to legally operate in this state or is otherwise subject to enforcement of environmental laws.

(o) "Nonregulated entity" means an entity that does not require a permit issued pursuant to environmental laws to legally operate in this state.

(p) "Secretary" means the secretary of the Department of Environmental Protection.

(q) "Significant impact to the environment" means a release of a substance into the environment which has caused or may cause an adverse affect to natural resources, organisms, flora, fauna or the ecosystem.

(r) "Significant impact to human health" means a release of a substance into the environment which has caused or may cause an acute or chronic affect to human health.

(s) "Source reduction" means any practice which reduces the amount of any pollutant, contaminant, or hazardous substance entering any waste stream or otherwise being released into the environment, including fugitive emissions, prior to recycling, treatment, or disposal and reduces the hazards to public health and the environment associated with the release of these pollutants, contaminants, or hazardous substances. "Source reduction" includes equipment or technology modifications, process or procedure modifications, reformulation or redesign of products, substitution of raw materials, and improvements in housekeeping, maintenance, training or inventory control. "Source reduction" does not include any practice which alters the physical, chemical, or biological characteristics or the volume of a hazardous substance, pollutant or contaminant through a process or activity which itself is not integral to and necessary for the production of a product or the providing of a service.

(t) "Superior environmental performance" means environmental performance that results in measurable or discernable improvement in the quality of the air, water, land or natural resources or in the protection of the ecosystem beyond that which is actually being achieved by the qualified applicant under compliance with current environmental laws. "Superior environmental performance" does not include pollutant reductions resulting from cross-media pollutant transfers unless it can be demonstrated that such transfer results in an overall improvement to the quality of the air, water, land and natural resources. "Superior environmental performance" may include, but is not limited to, any of the following:

(1) An entity limits the discharges or emissions of pollutants from, or in some other way minimizes the negative effects on air, water, land, natural resources, or human health of, a facility that is owned or operated by the entity or an activity that is performed by the entity to an extent that is greater than is required by applicable environmental laws.

(2) An entity minimizes the negative impact on air, water, land, natural resources, or human health of the raw materials used by the entity or the products or services produced or provided by the entity to an extent that is greater than is required by applicable environmental laws.

(3) An entity voluntary engages in restoring, reclaiming, enhancing, or preserving natural resources.

(4) An entity organizes segmented or uncoordinated entities that are producing environmental harm into a program that achieves positive environmental results.

(5) An entity reduces waste, hazardous substances, or toxic substances in the design, production, delivery, use or reuse of goods and services.

(6) An entity reduces or conserves energy, nonrenewable or renewable natural resources through more efficient and sustainable methods.

(u) "Toxic use reduction" means changes in production processes, products, or raw materials that reduce, avoid or eliminate the use of toxic or hazardous substances and the generation of hazardous byproducts per unit of production, so as to reduce the overall risks to the health of workers, consumers or the environment without creating new risks of concern.

§22-25-4. Powers and duties of the department.

(a) Within one year after the effective date of this section, the secretary, after consultation with representatives from the regulated community, local governments, environmental advocacy groups and other interested citizens, shall develop and implement a voluntary environmental excellence program in accordance with this article. The secretary shall propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code necessary to establish and implement all necessary program elements for the environmental excellence program as established in this article. Such program elements shall include, but are not limited to, the following criteria:

(1) Participation and entry into the program;

(2) Public involvement;

(3) Environmental management system;

(4) Commitment to superior environmental performance;

(5) Communication of program results to the public; and

(6) Incentives.

(b) In establishing the environmental excellence business program, the secretary may establish classes, categories, or tiers of environmental performance agreements as the secretary considers appropriate, taking into consideration the diversity of businesses and industries in the state, the impact these entities may have on the environment, and the incentives sought by the qualified applicant.

(c) The secretary may negotiate with federal regulatory agencies to obtain authority to grant incentives under federal regulatory programs.

(d) Participation in the program by any participant is voluntary and is subject to review every three years.

§22-25-5. Eligibility and application requirements.

(a) The secretary shall establish by rule the minimum criteria for participation in the environmental excellence program. The minimum criteria shall include, but not be limited to, the following:

(1) An identified number of years with no serious civil noncompliance;

(2) An identified number of years without any criminal noncompliance;

(3) An identified number of years with no activities that resulted in a significant negative impact to human health or the environment;

(4) The existence and maintenance of an environmental management system;

(5) The existence and maintenance of an environmental management system audit program;

(6) The establishment of quantifiable environmental goals which are designed to achieve superior environmental performance;

(7) The existence and maintenance of verifiable, quantitative and qualitative measures or methods to document attainment of environmental goals; and

(8) The existence or establishment of a public participation plan as approved by the secretary that demonstrates that the proposal has broad support, its environmental implications are fully understood by all interested parties, and assures ongoing engagement of the public.

(b) The secretary shall establish alternative elective program elements in addition to the mandatory program elements set forth in subsection (a) of this section. Qualified applicants shall select from among the alternative elective program elements and complete those selected within a specified time period. The number of elective program elements shall be determined by the secretary and based on the activity of the participant and the nature of the proposal. All elective program elements shall be designed to result in measurable improvement and enhancement of the environmental quality of the state or shall be activities that are beneficial to the environment. Elective program elements may include, but are not limited to:

(1) Development and maintenance of programs that provide technical assistance or mentoring to one or more specified organizations to encourage technology transfers;

(2) Active participation in industry or business environmental improvement programs;

(3) Publication and public distribution of annual environmental performance summary reports;

(4) Promotion, sponsorship and participation in community environmental and advisory programs;

(5) Development and maintenance of management programs that encourage and reward employees for meeting or exceeding requirements of environmental laws or permits and for participation in voluntary environmental activities; and

(6) Development and implementation of programs that reduce adverse environmental impact of development, manufacturing, distribution and marketing of the participant's products or services.

The secretary may establish additional alternative elective program elements so long as the elements are designed to result in the measurable improvement and enhancement of the environmental quality of this state. Any additional alternative elective program elements established by the secretary shall have a reasonable nexus to the industry or business to which it applies.

(c) The secretary shall establish application requirements and application forms for entities to submit proposals to participate in the program. The department shall review all applications submitted for the program and shall notify the eligible applicant that the application is complete or that the application is incomplete. If the application is incomplete, the department shall describe what additional information is required to complete the application. The applicant may correct the application and resubmit it at any time.

(d) Applicants accepted into an equivalent federal program at the time of submitting an application to the department may satisfy some or all of the eligibility and application requirements pursuant to this article at the secretary's discretion.

§22-25-6. Application review and authority to enter into environmental performance agreement.

(a) The secretary shall review all completed applications within a reasonable period of time. If the secretary determines that the application meets the requirements for the program, the secretary shall notify the applicant in writing, and the application shall be incorporated into a written agreement. If the secretary determines the application does not meet the requirements of the program, the secretary shall notify the applicant in writing and shall provide an adequate opportunity for the applicant to address the outstanding items.

(b) The secretary may enter into one or more agreements with a participant as necessary to implement the provisions of this article. The agreement shall describe the requirements for continued participation and incentives to be provided to the participant.

(c) The secretary shall not enter into any environmental performance agreement that would:

(1) Violate or waive any specific statutory provision;

(2) Waive any federal regulation, unless specifically authorized by the federal government;

(3) Result in an increase in emissions, discharges, or other releases above those allowable under the otherwise applicable regulatory requirements; or

(4) Address past or ongoing violations or noncompliance by a qualified applicant.

(d) The following documents shall be made available for public review:

(1) The application, including documentation of compliance with environmental laws and permits applicable to the facility over the last three years, information regarding an appropriate environmental management system, a description of the current status of proposed performance indicators, and an outline of the measures by which the program will be evaluated;

(2) The executive's determination regarding their application; and

(3) The agreement described in subsections (a) and (b) of this section.

§22-25-7. Judicial review of department decision on acceptance of application to participate in the environmental excellence program.

The decision of the department to refuse to accept an application for participation in the environmental excellence program is not subject to judicial review. The decision of the department to enter into an environmental performance agreement may be appealed to the environmental quality board by any person aggrieved or adversely affected by the action being appealed, pursuant to the provisions of article one, chapter twenty-two-b of this code.

§22-25-8. Withdrawal, enforcement and termination from the program.

(a) Any participant may elect to withdraw from participation in the program at any time upon written notice to the secretary.

(b) The secretary shall terminate the participation of any participant in the program if a serious violation is discovered or occurs and the violation is not properly disclosed in accordance with the law or is not corrected or remedied in a timely manner to the satisfaction of the secretary.

(c) The secretary may continue the participation of a participant in the program if a serious violation is discovered or occurs and the violation is properly disclosed in accordance with law and is corrected or remedied in a timely manner to the satisfaction of the secretary.

(d) A participant's participation in the program shall be suspended from the time the serious violation is discovered or occurs until the time it is corrected or remedied to the satisfaction of the secretary.

(e) If the secretary determines at any time a participant is failing to perform in accordance with the environmental performance agreement, and if, after written notice to the participant, the participant does not come into conformance within a reasonable period of time, as established by the secretary, the secretary may terminate the participant's participation in the program.

(f) All incentives provided by the state pursuant to section nine of this article shall be withdrawn, effective upon termination or withdrawal of the participant's participation in the program. If a participant withdraws or is terminated from the program, any unused incentives will be forfeited.

(g) The secretary shall establish, by rule, procedures and criteria that set forth circumstances under which a participant's participation shall be suspended or terminated and criteria for a transition plan for returning to otherwise applicable environmental laws if the environmental performance agreement is terminated by the participant for any reason or by the secretary for failure to meet the agreement's stated environmental goals, despite good faith efforts.

§22-25-9. Incentives.

The secretary shall propose rules for legislative approval, pursuant to the provisions of chapter twenty-nine-a of this code, establishing incentives to be granted to any participant that complies with all of the mandatory program elements and the prescribed number of elective program elements, as determined by the secretary. Participants may seek some or all of the incentives established pursuant to this subsection.

§22-25-10. Environmental performance agreements; contents, and specifications.

(a) The environmental performance agreement shall clearly establish the environmental goals of the participant; public involvement requirements; incentives; reporting requirements; and all other terms to ensure that the proposal is properly implemented and enforceable.

(b) In entering into environmental performance agreements, the secretary shall require stricter monitoring, or take other appropriate steps to ensure accountability, for proposals with greater uncertainty of meeting their stated environmental goals.

(c) A final environmental performance agreement shall specify:

(1) Any otherwise applicable rules, requirements, policies, or practices, modified, waived or replaced;

(2) The specific environmental goals of the agreement and the criteria for determining whether the agreement is meeting those goals;

(3) A description of how compliance with the agreement will be monitored and enforced, including any penalties that may be imposed for failure to carry out the terms of the agreement;

(4) The duration of the agreement and terms for renewal or extension;

(5) A transition plan for returning to otherwise applicable environmental laws in the event the agreement is terminated by either the participant or the department;

(6) A plan for integrating into the agreement any relevant regulations that are promulgated during the duration of the agreement; and

(7) Criteria for determining whether agreement may be transferred in the event of a transfer of ownership of the facility subject to the terms and conditions of the agreement and when applicable, the procedures for transferring the agreement.

§22-25-11. Recovery of costs to department in developing, negotiating and publicizing environmental performance agreement; deposition of moneys collected; creation of environmental excellence program administrative fund.

To recover the costs to the department in developing, negotiating and publicizing an environmental performance agreement, the secretary may establish by legislative rule reasonable application, renewal, and administration fees. An "Environmental Excellence Program Administrative Fund" is hereby created in the State Treasury. The funds shall be dedicated and appropriated to the department to administer the program. Expenditures are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions of article two, chapter five-a of this code: Provided, That for the fiscal year ending June 30, 2005, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature. Any moneys not utilized by the department for the purposes set forth herein by June 30, 2009, shall revert to the state General Revenue Fund and the environmental excellence program administration fund shall be dissolved.

§22-25-12. Public participation.

To promote a participatory process that will conform to the legislative rules adopted pursuant to section four of this article, to the extent that resources are available in the environmental excellence program administration fund and appropriated by the Legislature, the secretary is authorized to provide logistical and technical support to assure balanced and timely participation in any public process associated with this program.

§22-25-13.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§22-26-1. Short title; legislative findings.

(a) Short title. -- This article may be known and cited as the Water Resources Protection and Management Act.

(b) Legislative findings. --

(1) The West Virginia Legislature finds that it is the public policy of the State of West Virginia to protect and conserve the water resources for the state and to provide for the public welfare. The state's water resources are vital natural resources of the state that are essential to maintain, preserve and promote quality of life and economic vitality of the state.

(2) The West Virginia Legislature further finds that it is the public policy of the state that the water resources of the state be available for the benefit of the citizens of West Virginia, consistent with and preserving all other existing rights and remedies recognized in common law or by statute, while also preserving the resources within its sovereign powers for the common good.

(3) The West Virginia Legislature further finds that the water use survey conducted by the Department of Environmental Protection is a valuable tool for water resources assessment, protection and management.

(4) The West Virginia Legislature further finds that the water resources of this state have not been fully measured or assessed and that a program to accurately measure and assess the state's water resources is necessary to protect, conserve and better utilize the water resources of this state.

(5) The West Virginia Legislature further finds that the survey information collected and analyzed by the Department of Environmental Protection has identified the need for a statewide water resources management plan.

(6) The West Virginia Legislature further finds that the development of a state water resources management plan is in the best interest of the state and its citizens and will promote the protection of this valuable natural resource; promote its use for the public good; and enhance its use and development for tourism, industry and other economic development for the benefit of the state and its citizens.

(7) The West Virginia Legislature further finds that incomplete data collection from an inadequate groundwater monitoring system continues to hamper efforts to study, develop and protect the state's water resources and will be a major obstacle in the development of a water resources management plan.

§22-26-2. Definitions.

For purposes of this article:

(1) "Baseline average" means the average amount of water withdrawn by a large-quantity user over a representative historical time period as defined by the secretary.

(2) "Beneficial use" means uses that include, but are not limited to, public or private water supplies, agriculture, tourism, commercial, industrial, coal, oil and gas and other mineral extraction, preservation of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation and preservation of cultural values.

(3) "Commercial well" means a well that serves small businesses and facilities in which water is the prime ingredient of the service rendered, including water wells drilled to support horizontal well operations.

(4) "Community water system" means a public water system that pipes water for human consumption to at least fifteen service connections used by year-round residents or one that regularly serves at least twenty-five residents.

(5) "Consumptive withdrawal" means any withdrawal of water which returns less water to the water body than is withdrawn.

(6) "Department" means the West Virginia Department of Environmental Protection.

(7) "Farm use" means irrigation of any land used for general farming, forage, aquaculture, pasture, orchards, nurseries, the provision of water supply for farm animals, poultry farming or any other activity conducted in the course of a farming operation.

(8) "Industrial well" means a well used exclusively for nonpotable purposes, including industrial processing, fire protection, washing, packing or manufacturing of a product excluding food and beverages, or other nonpotable uses.

(9) "Interbasin transfer" means the permanent removal of water from the watershed from which it is withdrawn.

(10) "Large-quantity user" means any person who withdraws over three hundred thousand gallons of water in any thirty-day period from the state's waters and any person who bottles water for resale regardless of quantity withdrawn. "Large-quantity user" excludes farm use, including watering livestock or poultry on a farm, though farms may voluntarily report water withdrawals to assist with the accuracy of the survey.

(11) "Maximum potential" means the maximum designed capacity of a facility to withdraw water under its physical and operational design.

(12) "Noncommunity nontransient water system" means a public water system that serves at least twenty-five of the same persons over six months per year.

(13) "Nonconsumptive withdrawal" means any withdrawal of water which is not a consumptive withdrawal as defined in this section.

(14) "Person", "persons" or "people" means an individual, public and private business or industry, public or private water service and governmental entity.

(15) "Secretary" means the Secretary of the Department of Environmental Protection or his or her designee.

(16) "Transient water system" means a public water system that serves at least twenty-five transient people at least sixty days a year.

(17) "Test well" means a well that is used to obtain information on groundwater quantity, quality, aquifer characteristics and availability of production water supply for manufacturing, commercial and industrial facilities.

(18) "Water resources", "water" or "waters" means any and all water on or beneath the surface of the ground, whether percolating, standing, diffused or flowing, wholly or partially within this state, or bordering this state and within its jurisdiction and includes, without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands: Provided, That farm ponds, industrial settling basins and ponds and waste treatment facilities are excluded from the waters of the state.

(19) "Watershed" means a hydrologic unit utilized by the United States Department of Interior's Geological Survey, adopted in 1974, as a framework for detailed water and related land-resources planning.

(20) "Withdrawal" means the removal or capture of water from water resources of the state regardless of whether it is consumptive or nonconsumptive: Provided, That water encountered during coal, oil, gas, water well drilling and initial testing of water wells, or other mineral extraction and diverted, but not used for any purpose and not a factor in low-flow conditions for any surface water or groundwater, is not deemed a withdrawal.

§22-26-3. Waters claimed by state; water resources protection survey; registration requirements; agency cooperation; information gathering.

(a) The waters of the State of West Virginia are claimed as valuable public natural resources held by the state for the use and benefit of its citizens. The state shall manage and protect its waters effectively for present and future use and enjoyment and for the protection of the environment. Therefore, it is necessary for the state to determine the nature and extent of its water resources, the quantity of water being withdrawn or otherwise used and the nature of the withdrawals or other uses: Provided, That no provisions of this article may be construed to amend or limit any other rights and remedies created by statute or common law in existence on the date of the enactment of this article.

(b) The secretary shall conduct an ongoing water resources survey of consumptive and nonconsumptive surface water and groundwater withdrawals by large-quantity users in this state. The secretary shall determine the form and format of the information submitted, including the use of electronic submissions. The secretary shall establish and maintain a statewide registration program to monitor large-quantity users of water resources.

(c) Large-quantity users, except those who purchase water from a public or private water utility or other service that is reporting its total withdrawal, shall register with the department and provide all requested survey information regarding withdrawals of the water resources. Multiple withdrawals from state water resources that are made or controlled by a single person and used at one facility or location shall be considered a single withdrawal of water. Water withdrawals for self-supplied farm use and private households will be estimated. Water utilities regulated by the Public Service Commission pursuant to article two, chapter twenty-four of this code are exempted from providing information on interbasin transfers to the extent those transfers are necessary to provide water utility services within the state.

(d) Except as provided in subsection (f) of this section, large-quantity users who withdraw water from a West Virginia water resource shall comply with the survey and registration requirements of this article. Registration shall be maintained annually by every large-quantity user on forms and in a manner prescribed by the secretary.

(e) The secretary shall maintain a listing of all large- quantity users and each user's baseline average water withdrawal.

(f) The secretary shall make a good faith effort to obtain survey and registration information from persons who are withdrawing water from in-state water resources, but who are located outside the state borders.

(g) All state agencies and local governmental entities that have a regulatory, research, planning or other function relating to water resources, including, but not limited to, the State Geological and Economic Survey, the Division of Natural Resources, the Public Service Commission, the Bureau for Public Health, the Commissioner of the Department of Agriculture, the Division of Homeland Security and Emergency Management, Marshall University, West Virginia University and regional, county and municipal planning authorities may enter into interagency agreements with the secretary and shall cooperate by: (i) Providing information relating to the water resources of the state; (ii) providing any necessary assistance to the secretary in effectuating the purposes of this article; and (iii) assisting in the development of a state water resources management plan. The secretary shall determine the form and format of the information submitted by these agencies.

(h) Persons required to participate in the survey and registration shall provide any reasonably available information on stream flow conditions that impact withdrawal rates.

(i) Persons required to participate in the survey and registration shall provide the most accurate information available on water withdrawal during seasonal conditions and future potential maximum withdrawals or other information that the secretary determines is necessary for the completion of the survey or registration: Provided, That a coal-fired electric generating facility shall also report the nominal design capacity of the facility, which is the quantity of water withdrawn by the facility's intake pumps necessary to operate the facility during a calendar day.

(j) The secretary shall, to the extent reliable water withdrawal data is reasonably available from sources other than persons required to provide data and participate in the survey and registration, utilize that data to fulfill the requirements of this section. If the data is not reasonably available to the secretary, persons required to participate in the survey and registration are required to provide the data. Altering locations of intakes and discharge points that result in an impact to the withdrawal of the water resources shall also be reported.

(k) The secretary shall report annually to the Joint Legislative Oversight Commission on State Water Resources on the survey results. The secretary shall also make a progress report annually on the implementation of the State Water Resources Management Plan and any significant changes that may have occurred since the State Water Resources Management Plan was submitted in 2013.

(l) In addition to any requirements for completion of the survey established by the secretary, the survey must accurately reflect both actual and maximum potential water withdrawal. Actual withdrawal shall be established through metering, measuring or alternative accepted scientific methods to obtain a reasonable estimate or indirect calculation of actual use.

(m) The secretary shall make recommendations to the Joint Legislative Oversight Commission on Water Resources created in section five of this article relating to the implementation of a water quantity management strategy for the state or regions of the state where the quantity of water resources are found to be currently stressed or likely to be stressed due to emerging beneficial or other uses, ecological conditions or other factors requiring the development of a strategy for management of these water resources.

(n) The secretary may propose rules pursuant to article three, chapter twenty-nine-a of this code as necessary to implement the survey registration or plan requirements of this article.

(o) The secretary is authorized to enter into cooperative agreements with local, state and federal agencies and private policy or research groups to obtain federal matching funds, conduct research and analyze survey and registration data and other agreements as may be necessary to carry out his or her duties under this article.

(p) The department, the Division of Natural Resources, the Division of Highways and the Conservation Agency (cooperating state agencies) shall continue providing matching funds for the United States Geological Survey's (USGS) stream-gauging network to the maximum extent practicable. Should a cooperating state agency become unable to maintain its contribution level, it should notify the USGS and the commission of its inability to continue funding for the subsequent federal fiscal year by July 1 in order to allow for the possible identification of alternative funding resources.

§22-26-4. Confidentiality.

(a) Information required to be submitted by a person as part of the water withdrawal survey and registration that may be a trade secret, contain protected information relating to homeland security or be subject to another exemption provided by the state freedom of information act may be deemed confidential. Each such document shall be identified by that person as confidential information. The person claiming confidentiality shall provide written justification to the secretary at the time the information is submitted stating the reasons for confidentiality and why the information should not be released or made public. The secretary has the discretion to approve or deny requests for confidentiality as prescribed by this section.

(b) In addition to records or documents that may be considered confidential under article one, chapter twenty-nine-b of this code, confidential information means records, reports or information, or a particular portion thereof, that if made public would:

(1) Divulge production or sales figures or methods, processes or production unique to the submitting person;

(2) Otherwise tend to adversely affect the competitive position of a person by revealing trade secrets, including intellectual property rights; or

(3) Present a threat to the safety and security of any water supply, including information concerning water supply vulnerability assessments.

(c) Information designated as confidential and the written justification shall be maintained in a file separate from the general records related to the person.

(d) Information designated as confidential may be released when the information is contained in a report in which the identity of the person has been removed and the confidential information is aggregated by hydrologic unit or region.

(e) Information designated as confidential may be released to governmental entities, their employees and agents when compiling and analyzing survey and registration information and as may be necessary to develop the legislative report required by this section or to develop water resources plans. Any governmental entity or person receiving information designated confidential shall protect the information as confidential.

(f) Upon receipt of a request for information that has been designated confidential and prior to making a determination to grant or deny the request, the secretary shall notify the person claiming confidentiality of the request and may allow the person an opportunity to respond to the request in writing within five days.

(g) All requests to inspect or copy documents shall state with reasonable specificity the documents or type of documents sought to be inspected or copied. Within ten business days of the receipt of a request, the secretary shall: (1) Advise the person making the request in writing of the time and place where the person may inspect and copy the documents which, if the request addresses information claimed as confidential, may not be sooner than twenty days following the date of the determination to disclose, unless an earlier disclosure date is agreed to by the person claiming confidentiality; or (2) deny the request, stating in writing the reasons for denial. If the request addresses information claimed as confidential, then notice of the action taken pursuant to this subsection shall also be provided to the person asserting the claim of confidentiality.

(h) Any person adversely affected by a determination regarding confidential information under this article may appeal the determination to the appropriate circuit court pursuant to the provisions of article five, chapter twenty-nine-a of this code. The filing of a timely notice of appeal shall stay any determination to disclose confidential information pending a final decision on appeal. The scope of review is limited to the question of whether the portion of the records, reports, data or other information sought to be deemed confidential, inspected or copied is entitled to be treated as confidential under this section. The secretary shall afford evidentiary protection in appeals as necessary to protect the confidentiality of the information at issue, including the use of in camera proceedings and the sealing of records when appropriate.

§22-26-5. Joint Legislative Oversight Commission on State Water Resources.

(a) The President of the Senate and the Speaker of the House of Delegates shall each designate five members of their respective houses, at least one of whom shall be a member of the minority party, to serve on a joint legislative oversight commission charged with immediate and ongoing oversight of the water resources survey, registration and development of a state water resources management plan. This commission shall be known as the Joint Legislative Oversight Commission on State Water Resources and shall regularly investigate and monitor all matters relating to water resources, including the survey and plan.

(b) The expenses of the commission, including the cost of conducting the survey and monitoring any subsequent strategy and those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel, are to be approved by the Joint Committee on Government and Finance and paid from legislative appropriations.

§22-26-6. Mandatory survey and registration compliance.

(a) The water resources survey and subsequent registry will provide critical information for protection of the state's water resources and, thus, mandatory compliance with the survey and registry is necessary.

(b) All large-quantity users who withdraw water from a West Virginia water resource shall complete the survey and register use with the department. Any person who fails to complete the survey or register, provides false or misleading information on the survey or registration, or fails to provide other information as required by this article may be subject to a civil administrative penalty not to exceed $5,000 to be collected by the secretary consistent with the secretary's authority pursuant to this chapter. Every thirty days after the initial imposition of the civil administrative penalty, another penalty may be assessed if the information is not provided. The secretary shall provide written notice of failure to comply with this section thirty days prior to assessing the first administrative penalty.

§22-26-7. Secretary authorized to log wells; collect data.

(a) In order to obtain important information about the state's surface and groundwater, the secretary is authorized to collect scientific data on surface and groundwater and to enter into agreements with local and state agencies, the federal government and private entities to obtain this information.

(b) Any person who installs a community water system, noncommunity nontransient water system, transient water system, commercial well, industrial or test well shall notify the secretary of his or her intent to drill a water well no less than ten days prior to commencement of drilling. The ten-day notice is the responsibility of the owner, but may be given by the drilling contractor.

(c) The secretary has the authority to gather data, including driller and geologist logs, run electric and other remote-sensing logs and devices and perform physical characteristics tests on nonresidential and multifamily water wells.

(d) The drilling contractor shall submit to the secretary a copy of the well completion forms submitted to the Bureau for Public Health for a community water system, noncommunity nontransient water system, transient water system, commercial well, industrial or test well. The drilling contractor shall also provide the well GPS location and depth to groundwater on the well report submitted to the secretary.

(e) Any person who fails to notify the secretary prior to drilling a well or impedes collection of information by the secretary under this section is in violation of the Water Resources Protection and Management Act and is subject to the civil administrative penalty authorized by section six of this article.

(f) Any well contracted for construction by the secretary for groundwater or geological testing must be constructed at a minimum to well design standards as promulgated by the Bureau for Public Health. Any wells contracted for construction by the secretary for groundwater or geological testing that would at a later date be converted to a public use water well must be constructed to comport to state public water design standards.

§22-26-8. State Water Resources Management Plan; powers and duty of secretary.

(a) The secretary shall oversee the development of a State Water Resources Management Plan to be completed no later than November 30, 2013. The plan shall be reviewed and revised as needed after its initial adoption. The plan shall be developed with the cooperation and involvement of local and state agencies with regulatory, research or other functions relating to water resources including, but not limited to, those agencies and institutions of higher education set forth in section three of this article and a representative of large-quantity users. The State Water Resources Management Plan shall be developed utilizing the information obtained pursuant to said section and any other relevant information available to the secretary.

(b) The secretary shall develop definitions for use in the State Water Resources Management Plan for terms that are defined differently by various state and federal governmental entities as well as other terms necessary for implementation of this article.

(c) The secretary shall continue to develop and obtain the following:

(1) An inventory of the surface water resources of each region of this state, including an identification of the boundaries of significant watersheds and an estimate of the safe yield of sources for consumptive and nonconsumptive uses during periods of normal conditions and drought.

(2) A listing of each consumptive or nonconsumptive withdrawal by a large-quantity user, including the amount of water used, location of the water resources, the nature of the use, location of each intake and discharge point by longitude and latitude where available and, if the use involves more than one watershed or basin, the watersheds or basins involved and the amount transferred.

(3) A plan for the development of the infrastructure necessary to identify the groundwater resources of each region of this state, including an identification of aquifers and groundwater basins and an assessment of their safe yield, prime recharge areas, recharge capacity, consumptive limits and relationship to stream base flows.

(4) After consulting with the appropriate state and federal agencies, assess and project the existing and future nonconsumptive use needs of the water resources required to serve areas with important or unique natural, scenic, environmental or recreational values of national, regional, local or statewide significance, including national and state parks; designated wild, scenic and recreational rivers; national and state wildlife refuges; and the habitats of federal and state endangered or threatened species.

(5) Assessment and projection of existing and future consumptive use demands.

(6) Identification of potential problems with water availability or conflicts among water uses and users including, but not limited to, the following:

(A) A discussion of any area of concern regarding historical or current conditions that indicate a low-flow condition or where a drought or flood has occurred or is likely to occur that threatens the beneficial use of the surface water or groundwater in the area; and

(B) Current or potential in-stream or off-stream uses that contribute to or are likely to exacerbate natural low-flow conditions to the detriment of the water resources.

(7) Establish criteria for designation of critical water planning areas comprising any significant hydrologic unit where existing or future demands exceed or threaten to exceed the safe yield of available water resources.

(8) An assessment of the current and future capabilities of public water supply agencies and private water supply companies to provide an adequate quantity and quality of water to their service areas.

(9) An assessment of floodplain and stormwater management problems.

(10) Efforts to improve data collection, reporting and water monitoring where prior reports have found deficiencies.

(11) A process for identifying projects and practices that are being, or have been, implemented by water users that reduce the amount of consumptive use, improve efficiency in water use, provide for reuse and recycling of water, increase the supply or storage of water or preserve or increase groundwater recharge and a recommended process for providing appropriate positive recognition of those projects or practices in actions, programs, policies, projects or management activities.

(12) An assessment of both structural and nonstructural alternatives to address identified water availability problems, adverse impacts on water uses or conflicts between water users, including potential actions to develop additional or alternative supplies, conservation measures and management techniques.

(13) A review and evaluation of statutes, rules, policies and institutional arrangements for the development, conservation, distribution and emergency management of water resources.

(14) A review and evaluation of water resources management alternatives and recommended programs, policies, institutional arrangements, projects and other provisions to meet the water resources needs of each region and of this state.

(15) Proposed methods of implementing various recommended actions, programs, policies, projects or management activities.

(d) The State Water Resources Management Plan shall consider:

(1) The interconnections and relationships between groundwater and surface water as components of a single hydrologic resource.

(2) Regional or watershed water resources needs, objectives and priorities.

(3) Federal, state and interstate water resource policies, plans, objectives and priorities, including those identified in statutes, rules, regulations, compacts, interstate agreements or comprehensive plans adopted by federal and state agencies and compact basin commissions.

(4) The needs and priorities reflected in comprehensive plans and zoning ordinances adopted by a county or municipal government.

(5) The water quantity and quality necessary to support reasonable and beneficial uses.

(6) A balancing and encouragement of multiple uses of water resources, recognizing that all water resources of this state are capable of serving multiple uses and human needs, including multiple uses of water resources for reasonable and beneficial uses.

(7) The distinctions between short-term and long-term conditions, impacts, needs and solutions to ensure appropriate and cost-effective responses to water resources issues.

(8) Application of the principle of equal and uniform treatment of all water users that are similarly situated without regard to established political boundaries.

(e) Each November, the secretary shall report to the Joint Legislative Oversight Commission on State Water Resources on the implementation of the State Water Resources Management Plan.

(f) The State Water Resources Management Plan is adopted. Persons identified as large-quantity users prior to the effective date of this subsection shall report actual monthly water withdrawals, or monthly water withdrawals by a method approved by the secretary, for the previous calendar year by March 31 of each succeeding year. Persons identified as large-quantity users on or after the effective date of this subsection shall submit their initial annual report no later than March 31, 2016, and subsequent annual reports by March 31 of each year thereafter.

§22-26-9. Regional water resources management plans; critical planning areas.

(a) As part of the state Water Resources Management Plan, the secretary may designate areas of the state as regional or critical water planning areas for the development of regional or critical area water resources management plans.

(b) The secretary shall establish a timetable for completion of regional and critical area plans which may be developed.

(c) The secretary shall identify all federal and state agencies, county commissions, municipal governments and watershed associations that should be involved in the planning process and any compacts or interstate agreements that may be applicable to the development of a regional or critical area water resource management plan.

(d) The secretary shall establish the minimum requirements for any issues to be addressed by regional and critical area plans within twelve months of the amendment and reenactment of this article during the two thousand eight regular session of the Legislature. The plan requirements and issues to be addressed by regional and critical area plans shall be consistent with the state plan requirements of this article.

(e) The secretary shall establish timetables for the completion of tasks or phases in the development of regional and critical area plans. County commissions and municipal governments may recommend changes in the order in which the tasks and phases must be completed. The secretary shall have final authority to determine the schedule for development of a plan.

(f) Any county or municipal government may enter into an agreement with the secretary to designate a local planning area and develop a local plan which may include all or part of a region. The secretary shall assist in development of any such plan to the extent practicable with existing staff and funding.

(g) Plans developed by a county or municipal government shall comply with the secretary's requirements and shall be filed as part of the state Water Resources Management Plan.

§22-27-1. Declaration of policy and purpose.

This article is intended to encourage the improvement of land and water adversely affected by mining, to aid in the protection of wildlife, to decrease soil erosion, to aid in the prevention and abatement of the pollution of rivers and streams, to protect and improve the environmental values of the citizens of this state and to eliminate or abate hazards to health and safety. It is the intent of the Legislature to encourage voluntary reclamation of lands adversely affected by mining. The purpose of this article is to improve water quality and to control and eliminate water pollution resulting from mining extraction or exploration by limiting the liability which could arise as a result of the voluntary reclamation of abandoned lands or the reduction and abatement of water pollution. This article is not intended to limit the liability of a person who by law is or may become responsible to reclaim the land or address the water pollution or anyone who by contract, order or otherwise is required to or agrees to perform the reclamation or abate the water pollution.

§22-27-2. Legislative findings.

The Legislature finds and declares as follows:

(1) The state's long history of mining has left some lands and waters unreclaimed and polluted.

(2) These abandoned lands and polluted waters are unproductive, diminish the tax base and are serious impediments to the economic welfare and growth of this state.

(3) The unreclaimed lands and polluted waters present a danger to the health, safety and welfare of the people and the environment.

(4) The State of West Virginia does not possess sufficient resources to reclaim all the abandoned lands and to abate the water pollution.

(5) Numerous landowners, citizens, watershed associations, environmental organizations and governmental entities who do not have a legal responsibility to reclaim the abandoned lands or to abate the water pollution are interested in addressing these problems but are reluctant to engage in such reclamation and abatement activities because of potential liabilities associated with the reclamation and abatement activities.

(6) It is in the best interest of the health, safety and welfare of the people of this state and the environment to encourage reclamation of the abandoned lands and abatement of water pollution.

(7) That this act will encourage and promote the reclamation of these properties.

§22-27-3. Definitions.

As used in this article unless used in a context that clearly requires a different meaning, the term:

(a) "Abandoned lands" means land adversely affected by mineral extraction and left or abandoned in an unreclaimed or inadequately reclaimed condition.

(b) "Consideration" means something of value promised, given or performed in exchange for something which has the effect of making a legally enforceable contract. For the purpose of this article, the term does not include a promise to a landowner to repair damage caused by a reclamation project or water pollution abatement project when the promise is made in exchange for access to the land.

(c) "Department" means the West Virginia Department of Environmental Protection.

(d) "Eligible land" means land adversely affected by mineral extraction and left or abandoned in an unreclaimed or inadequately reclaimed condition or causing water pollution and for which no person has a continuing reclamation or water pollution abatement obligation.

(e) "Eligible landowner" means a landowner that provides access to or use of the project work area at no cost for a reclamation or water pollution abatement project who is not or will not become responsible under state or federal law to reclaim the land or address the water pollution existing or emanating from the land.

(f) "Eligible project sponsor" means a person that provides equipment, materials or services at no cost or at cost for a reclamation or water pollution abatement project who is not or will not become responsible under state or federal law to reclaim the land or address the water pollution existing or emanating from the land.

(g) "Landowner" means a person who holds either legal or equitable interest in real property.

(h) "Mineral" means any aggregate or mass of mineral matter, whether or not coherent, which is extracted by mining. This includes, but is not limited to, limestone, dolomite, sand, gravel, slate, argillite, diabase, gneiss, micaceous sandstone known as bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore, vermiculite, clay and anthracite and bituminous coal.

(i) "Permitted activity site" means a site permitted by the Department of Environmental Protection under the provisions of article two, three or four of this chapter.

(j) "Person" means a natural person, partnership, association, association members, corporation, an agency, instrumentality or entity of federal or state government or other legal entity recognized by law as the subject of rights and liabilities.

(k) "Project work area" means that land necessary for a person to complete a reclamation project or a water pollution abatement project.

(l) "Reclamation project" means the restoration of eligible land to productive use by regrading and revegetating the land to stable contours that blend in and complement the drainage pattern of the surrounding terrain with no highwalls, spoil piles or depressions to accumulate water, or to decrease or eliminate discharge of water pollution.

(m) "Water pollution" means the man-made or man-induced alteration of the chemical, physical, biological and radiological integrity of water located in the state.

(n) "Water pollution abatement facilities" means the methods for treatment or abatement of water pollution located on eligible lands. These methods include, but are not limited to, a structure, system, practice, technique or method constructed, installed or followed to reduce, treat or abate water pollution.

(o) "Water pollution abatement project" means a plan for treatment or abatement of water pollution located on eligible lands.

§22-27-4. Eligibility and project inventory.

(a) General rule. -- An eligible landowner or eligible project sponsor who voluntarily provides equipment, materials or services at no charge or at cost for a reclamation project or a water pollution abatement project in accordance with the provisions of this article is immune from civil liability and may raise the protections afforded by the provisions of this article in any subsequent legal proceeding which is brought to enforce environmental laws or otherwise impose liability. An eligible landowner or eligible project sponsor is only entitled to the protections and immunities provided by this article after meeting all eligibility requirements and compliance with a detailed written plan of the proposed reclamation project or water pollution abatement project which is submitted to and approved by the department. The project plan shall include the objective of the project and a description of the work to be performed to accomplish the objective and shall, additionally, identify the project location, project boundaries, project participants and all landowners.

(b) Notice. -- The department shall give written notice by certified mail to adjacent property owners and riparian land owners located downstream of the proposed project, provide Class IV public notice of the proposed project in a newspaper of general circulation, published in the locality of the proposed project, and shall give public notice in the state register. The project sponsor may also provide public notice. Any person having an interest which may be adversely affected by the proposed project has the right to file written objections to the department within thirty days after receipt of the written notice or within thirty days after the last publication of the Class IV notice. The department shall provide to the project sponsor a copy of each written objection received during the public comment period, which shall conclude at the expiration of the applicable thirty-day period provided for in this section.

(c) Advice. -- The department may provide advice to the landowner or to other interested persons based upon the department's knowledge and experience in performing reclamation projects and water pollution abatement projects.

(d) Departmental review. -- The department shall review each proposed reclamation project and approve the project if the department determines the proposed project:

(1) Will result in the appropriate reclamation and regrading of the land according to all applicable laws and regulations;

(2) Will result in the appropriate revegetation of the site;

(3) Is not likely to result in pollution as defined in article eleven of this chapter; and

(4) Is likely to improve the water quality and is not likely to make the water pollution worse.

(e) Project inventory. -- The department shall develop and maintain a system to inventory and record each project, the project location and boundaries, each landowner and each person identified in a project plan provided to the department. The inventory shall include the results of the department's review of the proposed project and, where applicable, include the department's findings under subsection (b), section ten of this article.

(f) Appeal. -- A person aggrieved by a department decision to approve or disapprove a reclamation project or a water pollution abatement project has the right to file an appeal with the environmental quality board under the provisions of article one, chapter twenty-two-b of this code.

§22-27-5. Landowner liability limitation and exceptions.

(a) General rule. -- Except as specifically provided in subsections (b) and (c) of this section, an eligible landowner who provides access to the land, without charge or other consideration, which results in the implementation of a reclamation project or a water pollution abatement project:

(1) Is immune from liability for any injury or damage suffered by persons working under the direct supervision of the project sponsor while such persons are within the project work area;

(2) Is immune from liability for any injury to or damage suffered by a third party which arises out of or occurs as a result of an act or omission of the project sponsor which occurs during the implementation of the reclamation project or the water pollution abatement project;

(3) Is immune from liability for any injury to or damage suffered by a third party which arises out of or occurs as a result of a reclamation project or a water pollution abatement project;

(4) Is immune from liability for any pollution resulting from a reclamation project or water pollution abatement project;

(5) Is immune from liability for the operation, maintenance or repair of the water pollution abatement facilities constructed or installed during the project unless the eligible landowner negligently damages or destroys the water pollution abatement facilities or denies access to the project sponsor who is responsible for the operation, maintenance or repair the water pollution abatement facilities.

(b) Duty to warn. -- The eligible landowner shall warn the project sponsor of known, latent, dangerous conditions located on the project work area which are not the subject of the reclamation project or the water pollution abatement project. Nothing in this article shall limit an eligible landowner's liability which results from the eligible landowner's failure to warn of such known, latent, dangerous conditions.

(c) Exceptions to immunity. -- Nothing in this article may limit an eligible landowner's liability which results from a reclamation project or water pollution abatement project and which would otherwise exist:

(1) For injury or damage resulting from the landowner's acts or omissions which are reckless or constitute gross negligence or willful misconduct.

(2) Where the landowner accepts or requires consideration for allowing access to the land for the purpose of implementing a reclamation project or water pollution abatement project or to operate, maintain or repair water pollution abatement facilities constructed or installed during a water pollution abatement project.

(3) For the landowner's unlawful activities.

(4) For damage to adjacent landowners or downstream riparian landowners which results from a reclamation project or water pollution abatement project where written notice or public notice of the proposed project was not provided.

§22-27-6. Project sponsor liability limitation and exceptions.

(a) General rule. -- Except as specifically provided in subsection (b) of this section, a project sponsor who provides equipment, materials or services at no cost or at cost for a reclamation project or a water pollution abatement project:

(1) Is immune from liability for any injury to or damage suffered by a person which arises out of or occurs as a result of the water pollution abatement facilities constructed or installed during the water pollution abatement project;

(2) Is immune from liability for any pollution emanating from the water pollution abatement facilities constructed or installed during the water pollution abatement project unless the person affects an area that is hydrologically connected to the water pollution abatement project work area and causes increased pollution by activities which are unrelated to the implementation of a water pollution abatement project, provided that the project sponsor implements, operates, and maintains the project in accordance with the plans approved by the department;

(3) Is immune from liability for the operation, maintenance and repair of the water pollution abatement facilities constructed or installed during the water pollution abatement project.

(b) Exceptions. --

(1) Nothing in this article shall limit in any way the liability of a project sponsor which liability results from the reclamation project or the water pollution abatement project and which would otherwise exist:

(A) For injury or damage resulting from the project sponsor's acts or omissions which are reckless or constitute gross negligence or willful misconduct.

(B) For the person's unlawful activities.

(C) For damages to adjacent landowners or downstream riparian landowners which result from a reclamation project or a water pollution abatement project where written notice or public notice of the proposed project was not provided.

(2) Nothing in this article shall limit in any way the liability of a person who the Department has found to be in violation of any other provision or provisions of this chapter.

§22-27-7. Permits and zoning.

Nothing in this article may be construed as waiving any existing permit requirements or waiving any local zoning requirements.

§22-27-8. Relationship to federal and state programs.

The provisions of this article shall not prevent the department from enforcing requirements necessary or imposed by the federal government as a condition to receiving or maintaining program authorization, delegation, primacy or federal funds.

§22-27-9. General permits.

If the department determines it will further the purposes of this article, the department may issue a general permit for each reclamation project or water pollution abatement project, which shall:

(1) Encompass all of the activities included in the reclamation project or water pollution abatement project.

(2) Be issued in place of any individual required stream encroachment, earth disturbance or national pollution discharge elimination system permits.

§22-27-10. Exceptions.

(a) General rule. -- Any person who under existing law shall be or may become responsible to reclaim the land or treat or abate the water pollution or any person who for consideration or who receives some other benefit through a contract or any person who through a consent order and agreement or is ordered to perform or complete reclamation or treat or abate water pollution as well as a surety which provided a bond for the site is not eligible nor may receive the benefit of the protections and immunities available under this article.

(b) Projects near mining or coal refuse sites. -- This article does not apply to a reclamation project or a water pollution abatement project that is located adjacent to, hydrologically connected to or in close proximity to a site permitted under articles two, three or four of this chapter unless:

(1) The reclamation project or water pollution abatement project is submitted to the department in writing before the project is started; and

(2) The department finds:

(A) The reclamation project or the water pollution abatement project will not adversely affect the permittee's obligations under the permit and the applicable law;

(B) The activities on the project work area cannot be used by the permittee to avoid the permittee's reclamation or water pollution treatment or abatement obligations; and

(3) The department issues a written notice of its findings and the approval of the project.

(c) Projects in lieu of civil or administrative penalties. -- This article shall not apply to a reclamation project or a water pollution abatement project that is performed in lieu of paying civil or administrative penalties.

§22-27-11. Water supply replacement.

A public or private water supply affected by contamination or the diminution caused by the implementation of a reclamation project or the implementation of a water pollution abatement project shall be restored or replaced by the department with an alternate source of water adequate in quantity and quality for the purposes served by the water supply.

§22-27-12. Rules.

The department may propose legislative rules in accordance with article three, chapter twenty-nine-a of this code as needed to implement the provisions of this article.

§22-28-1. Legislative findings.

The Legislature finds and declares that:

(a) There is a growing need for the extension of public water and sewer services throughout the state and that the extension of such services and facilities maintains the health and economic vitality of the citizens of West Virginia. In addition, access to such infrastructure facilities is equal essential to development in all regions of the state.

(b) The extension of public water and sewer services promotes public health and safety in that it enables businesses, residences, municipalities and other entities to comply with state and federal water quality standards.

(c) The cost of publicly owned sewer and water facilities are normally born by the state, its subdivisions and the citizens of West Virginia and public indebtedness incurred to construct such facilities constitutes a financial burden on the state and its political subdivisions, as well as residential consumers.

(d) The rates for public water and sewer services charged to customers of all service classes have risen in recent years due primarily to the cost of utility construction and the cost of debt service associated with such construction.

(e) There are private business entities that are in need of water and sewer services for various residential, commercial and industrial projects throughout the state and that those entities are willing to pay the cost associated with constructing needed public water and sewer services and to dedicate the facility to the local certificated public utility after construction of such facilities.

(f) Those private business entities need a method by which to enter into agreements with municipal utilities or public service districts that would enable the construction of new infrastructure as well as the expansion of existing facilities.

(g) The dedication of such infrastructure facilities to the local certificated public utility without cost greatly benefits the citizens of the state and promotes industrial, commercial and economic development.

§22-28-2. Definitions.

For the purposes of this article, the following words or terms defined have the meaning ascribed to them herein:

(a) "Certificate of appropriateness" shall refer to the document evidencing approval of a project and is issued by the Secretary of the Department of Environmental Protection pursuant to the provisions of this article. The issuance of such a certificate shall exempt the project from the provisions of section eleven, article two, chapter twenty-four of this code and, in the case of a public service district, from the provisions of section twenty-five, article thirteen-a, chapter sixteen of this code.

(b) "Community infrastructure investment agreement" shall refer to a written agreement between a municipal utility or public service district and a person that provides for the transfer of legal title to a project facility from the person to the municipal utility or public service district.

(c) "Community infrastructure investment project" shall refer to any newly constructed or enlarged and improved project facility that may be transferred to a municipal utility or public service district without cost to the municipal utility or public service district pursuant to the provisions of this article.

(d) "Person" shall refer to any individual, partnership, firm, society, association, trust, corporation or other business entity.

(e) "Project cost" shall refer to the capital cost of proposed community infrastructure investment project facilities to be constructed pursuant to the provisions of this article. "Project cost" shall also refer to newly constructed or enlarged and improved existing project facilities. Project cost shall not refer to any of the costs or expenses of ordinary operation and maintenance of the project facilities once they become operational.

(f) "Project facilities" shall refer to wastewater treatment plants or water treatment plants constructed pursuant to the provisions of this article and include, but are not limited to, related storage buildings or structures, meters, hydrants, pump stations, force and gravity mains, transmission lines and other such fixtures related to the construction of water or sewer facilities. Project facilities shall not refer to the ordinary extension of collection and distribution lines or facilities from or to the project constructed pursuant to the provisions of this article to the property of any user of project facilities.

(g) "Public service district" shall refer to those public corporations and political subdivisions of the state created pursuant to the provisions of section two, article thirteen-a, chapter sixteen of this code.

(h) "Secretary" shall refer to the Secretary of the Department of Environmental Protection established in section six, article one of this chapter.

§22-28-3. Creation of community infrastructure investment project; certificate of appropriateness; rule-making authority.

(a) There is hereby created a Community Infrastructure Investment Program within the Department of Environmental Protection. This Program will facilitate the construction or expansion of project facilities for the promotion of economic development and the protection of public health and environment in the state. Any public service district or municipal utility that wishes to accept a project facility constructed pursuant to a community infrastructure investment agreement with a project cost not to exceed $10 million may apply to the secretary for approval of such project. Nothing herein shall be construed to require a public service district or municipal utility to use this program.

(b) Where the Secretary shall have found that the community infrastructure investment project shall have met the requirements contained in this article, the Secretary shall issue a certificate of appropriateness to the municipal utility or public service district as evidence of such approval.

(c) Municipal utilities or public service districts may jointly enter into agreements with persons for the purpose of applying to the Secretary of the Department of Environmental Protection for approval of project facilities. The minimum terms and conditions of such agreements are established by the provisions of section four of this article.

(d) The Secretary will, by legislative rule, establish the criteria for the approval of such projects and shall have sole authority to make such determination.

§22-28-4. Community infrastructure investment agreements; report to Joint Committee on Government and Finance.

(a) Municipal utilities and public service districts have the power and authority to enter into community infrastructure investment agreements with any person for the purpose of constructing new project facilities or substantially improving or expanding project facilities.

(b) Notwithstanding any other provision in this code to the contrary, the Secretary shall have the power and the authority to review and approve all such community infrastructure investment agreements pursuant to this article.

(c) Each such agreement shall contain as a minimum the following terms and conditions to be performed by the parties thereto:

(1) The project facilities shall be engineered and constructed in accordance with the requirements for new construction established by the municipal utility or public service district;

(2) Proof or certification of the financial ability of the municipal utility or public service district to maintain and operate the public facilities;

(3) Certification that upon completion and activation of the project facility or improvements to the project facility, the title to the public facility shall be transferred without cost to the municipal utility or public service district;

(4) A finding that the construction of the new public facility, or the substantial improvement or expansion of an existing public facility, either: (i) Fosters economic growth by promoting commercial, industrial or residential development; and (ii) improves water quality or otherwise enables the affected territory to achieve compliance with any applicable state or federal health or environmental law;

(5) The municipal utility or public service district will receive or otherwise obtain without cost to the public all necessary rights-of-way for the operation of the public facility;

(6) The rates charged by the municipal utility or public service district to new customers to be served by the project facility shall be the rates in effect at the time of transfer of the project facility to the utility plus any additional cost of service borne by the municipal utility or public service district as a result of the project facility until such time as new rates may be finally enacted by the municipal utility or proposed by the public service district and approved by the Public Service Commission and the rates charged by the municipal utility or the public service district to existing customers shall not be impacted as a result of the obligation of the public service district or municipal utility pursuant to the community infrastructure investment agreement;

(7) Confirmation that the agreement does not violate any of the bond covenants imposed on the municipal utility or public service district;

(8) Proof that necessary permits, where applicable, have been obtained from the Division of Health and the Department of Environmental Protection;

(9) Evidence that the person responsible for the construction of or improvements to the public facility has provided funding to the municipal utility or public service district for the engagement of an engineer qualified to design and certify the structural integrity and capacity of the project facility;

(10) Proof that the person responsible for construction of or improvements to the public facility has obtained a performance bond payable to the municipal utility or public service district equal to the estimated cost of construction: Provided, That the form of the bond required by this section shall be approved by the Secretary and may include, at the option of the Secretary, surety bonding, collateral bonding (including cash and securities), establishment of an escrow account, letters of credit, performance bonding fund participation as established by the Secretary, self-bonding or a combination of these methods; and

(11) Any other conditions that the secretary may determine to be relevant as established.

(d) Where the Secretary has found that the community infrastructure investment agreement meets the requirements contained in this article, the Secretary shall issue a certificate of appropriateness to the parties as evidence of such approval.

(e) Not later than thirty days prior to the issuance of a certificate of appropriateness for any community infrastructure investment project, the Secretary shall first submit a report of the same to the Joint Committee on Government and Finance.

§22-28-5. Authority of the Department of Environmental Protection and Division of Health not affected.

Nothing contained in this article shall be construed to affect the authority of the Department of Environmental Protection pursuant to the provisions of this chapter, nor the authority of the Division of Health pursuant to the provisions of chapter sixteen of this code. Facilities discharging into the Potomac River watershed and its tributaries shall be designed to achieve nutrient reductions, for both Nitrogen and Phosphorus, consistent with West Virginia's participation in the Chesapeake Bay Program upon implementation of the Chesapeake Bay standards by the Secretary.

§22-28-6. Time for approval.

The Secretary shall approve or reject all applications for a community investment infrastructure project or agreement within thirty days, unless, by mutual agreement, such time period is extended. In no case shall the time period extend beyond ninety days.

§22-28-7. Fees.

The Secretary shall establish by legislative rule a schedule of fees reasonably calculated to pay for the costs of the administration of the provisions of this article.

§22-28-8. Exemption from Public Service Commission approval.

All project facilities constructed or improved pursuant to the provisions of this article shall be exempt from the provisions of chapter twenty-four of this code until such time as title to the public facility shall be transferred to the municipal utility or public service district. Nothing herein shall be construed to give the Public Service Commission authority to regulate or intervene in the approval and construction of any project or agreement provided in this article. Notwithstanding any other provision of this code to the contrary, the acquisition of a project facility by a municipality or public service district under the provisions of this article shall not require the issuance of a certificate of convenience and necessity from the Public Service Commission.

§22-28-9. Rule-making authority.

The Secretary shall have the authority to propose legislative rules for promulgation in accordance with the provisions of section one, article three, chapter twenty-nine-a of this code to effectuate the purposes of this article. Notwithstanding any provision of this code to the contrary, the proposed legislative rules for this article filed in the state register by August 1, 2005, may be filed as emergency rules.

§22-29-1. Short title and effective date.

This article is called the Green Buildings Act and is effective July 1, 2012.

§22-29-2. Findings and purpose.

(a) The Legislature finds that:

(1) Encouraging the construction of energy-efficient public buildings is in the public interest and promotes the general welfare of the people of the state.

(2) Efficient energy use by public buildings contributes substantially to improving the environment.

(3) Public buildings can be built in accordance with energy- efficient standards.

(b) This article is enacted to more efficiently spend public funds and protect the health and welfare of West Virginia residents.

§22-29-3. Definitions.

As used in this article:

(a) "ANSI" means the American National Standards Institute;

(b) "ASHRAE" means the American Society of Heating, Refrigerating and Air-Conditioning Engineers;

(c) "IESNA" means the Illuminating Engineering Society of North America;

(d) "ICC" means the International Code Council; and

(e) "Public agency" means an agency of the state and political subdivisions, public institutions of higher education and boards of education.

§22-29-4. Minimum energy standards for new building construction projects of public agencies.

All new building construction projects of public agencies that have not entered the schematic design phase prior to July 1, 2012, or any building construction project receiving state grant funds and appropriations, including public schools, that have not entered the schematic design phase prior to July 1, 2012, shall be designed and constructed complying with the ICC International Energy Conservation Code, adopted by the State Fire Commission, and the ANSI/ASHRAE/IESNA Standard 90.1-2007: Provided, That if any construction project has a commitment of federal funds to pay for a portion of such project, this section shall only apply to the extent such standards are consistent with the federal standards.

§22-30-1. Short title.

This article may be known and cited as the Aboveground Storage Tank Act.

§22-30-2. Legislative findings.

(a) The West Virginia Legislature finds the public policy of the State of West Virginia is to protect and conserve the water resources for the state and its citizens. The state's water resources are vital natural resources that are essential to maintain, preserve and promote human health, quality of life and economic vitality of the state.

(b) The West Virginia Legislature further finds the public policy of the state is for clean, uncontaminated water to be made available for its citizens who are dependent on clean water as a basic need for survival and who rely on the assurances from public water systems and the government that the water is safe to consume.

(c) The West Virginia Legislature further finds the public policy of the state is that clean, uncontaminated water be available to its businesses and industries that rely on water for their economic pursuits and the well-being of their employees. These include the medical industry, educational institutions, the food and hospitality industries, the tourism industry, manufacturing, coal, natural gas and other industries. Businesses and industries searching for places to locate or relocate consider the quality of life for their employees as well as the quality of raw materials such as clean water.

(d) The Legislature further finds that large quantities of fluids are stored in aboveground storage tanks within the state and that emergency situations involving these fluids can and will arise that may present a hazard to human health, safety, the water resources, the environment and the economy of the state. The Legislature further recognizes that some of these fluids have been stored in aboveground storage tanks in a manner insufficient to protect human health, safety, water resources, the environment and the economy of the state.

§22-30-3. Definitions.

For purposes of this article:

(1) "Aboveground storage tank" or "tank" or "AST" means a device made to contain an accumulation of more than 1,320 gallons of fluids that are liquid at standard temperature and pressure, which is constructed primarily of nonearthen materials, including concrete, steel, plastic, or fiberglass reinforced plastic, which provide structural support, more than 90 percent of the capacity of which is above the surface of the ground, and includes all ancillary pipes and dispensing systems up to the first point of isolation. The term includes stationary devices which are permanently affixed, and mobile devices which remain in one location on a continuous basis for 365 or more days. A device meeting this definition containing hazardous waste subject to regulation under 40 C. F. R. Parts 264 and 265, exclusive of tanks subject to regulation under 40 C. F. R. § 265.201 is included in this definition but is not a regulated tank. Notwithstanding any other provision of this code to the contrary, the following categories of devices are not subject to the provisions of this article:

(A) Shipping containers that are subject to state or federal laws or regulations governing the transportation of hazardous materials, including, but not limited to, railroad freight cars subject to federal regulation under the Federal Railroad Safety Act, 49 U. S. C. §20101-2015, as amended, including, but not limited to, federal regulations promulgated thereunder at 49 C. F. R. §§172, 173, or 174;

(B) Barges or boats subject to federal regulation under the United States Coast Guard, United States Department of Homeland Security, including, but not limited to, federal regulations promulgated at 33 C. F. R. 1 et seq. or subject to other federal law governing the transportation of hazardous materials;

(C) Swimming pools;

(D) Process vessels;

(E) Devices containing drinking water for human or animal consumption, surface water or groundwater, demineralized water, noncontact cooling water, or water stored for fire or emergency purposes;

(F) Devices containing food or food-grade materials used for human or animal consumption and regulated under the Federal Food, Drug and Cosmetic Act (21 U. S. C. §301-392);

(G) Except when located in a zone of critical concern, a device located on a farm, the contents of which are used exclusively for farm purposes and not for commercial distribution;

(H) Devices holding wastewater that is being actively treated or processed (e.g., clarifier, chlorine contact chamber, batch reactor, etc.);

(I) Empty tanks held in inventory or offered for sale;

(J) Pipeline facilities, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979, or an intrastate pipeline facility regulated by the West Virginia Public Service Commission or otherwise regulated under any state law comparable to the provisions of either the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979;

(K) Liquid traps, atmospheric and pressure vessels, or associated gathering lines related to oil or gas production and gathering operations;

(L) Electrical equipment such as transformers, circuit breakers, and voltage regulator transformers;

(M) Devices having a capacity of 210 barrels or less, containing brine water or other fluids produced in connection with hydrocarbon production activities, that are not located in a zone of critical concern; and

(N) Devices having a capacity of 10,000 gallons or less, containing sodium chloride or calcium chloride water for roadway snow and ice pretreatment, that are not located in a zone of critical concern: Provided, That all such devices exempted under subdivisions (M) and (N) of this subdivision must still meet the registration requirements contained in §22-30-4 of this code, the notice requirements contained in §22-30-10 of this code, and the signage requirements contained in §22-30-11 of this code.

(2) "Department" means the West Virginia Department of Environmental Protection.

(3) "First point of isolation" means the valve, pump, dispenser, or other device or equipment on or nearest to the tank where the flow of fluids into or out of the tank may be shut off manually or where it automatically shuts off in the event of a pipe or tank failure.

(4) "Nonoperational storage tank" means an empty aboveground storage tank in which fluids will not be deposited or from which fluids will not be dispensed on or after the effective date of this article.

(5) "Operator" means any person in control of, or having responsibility for, the daily operation of an aboveground storage tank.

(6) "Owner" means a person who holds title to, controls, or owns an interest in an aboveground storage tank, including the owner immediately preceding the discontinuation of its use. "Owner" does not mean a person who holds an interest in a tank for financial security unless the holder has taken possession of and operated the tank.

(7) "Person", "persons", or "people" means any individual, trust, firm, owner, operator, corporation, or other legal entity, including the United States government, an interstate commission or other body, the state or any agency, board, bureau, office, department, or political subdivision of the state, but does not include the Department of Environmental Protection.

(8) "Process vessel" means a tank that forms an integral part of a production process through which there is a steady, variable, recurring, or intermittent flow of materials during the operation of the process or in which a biological, chemical, or physical change in the material occurs. This does not include tanks used for storage of materials prior to their introduction into the production process or for the storage of finished products or by-products of the production process.

(9) "Public groundwater supply source" means a primary source of water supply for a public water system which is directly drawn from a well, underground stream, underground reservoir, underground mine, or other primary sources of water supplies which are found underneath the surface of the state.

(10) "Public surface water supply source" means a primary source of water supply for a public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments, or other primary sources of water supplies which are found on the surface of the state.

(11) "Public surface water influenced groundwater supply source" means a source of water supply for a public water system which is directly drawn from an underground well, underground river or stream, underground reservoir, or underground mine, and the quantity and quality of the water in that underground supply source is heavily influenced, directly or indirectly, by the quantity and quality of surface water in the immediate area.

(12) "Public water system" means:

(A) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of 25 individuals per day for at least 60 days per year, or which has at least 15 service connections, and shall include:

(i) Any collection, treatment, storage, and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and

(ii) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system.

(B) A public water system does not include a bathhouse located on coal company property solely for the use of its employees or a system which meets all of the following conditions:

(i) Consists only of distribution and storage facilities (and does not have any collection and treatment facilities);

(ii) Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;

(iii) Does not sell water to any person; and

(iv) Is not a carrier conveying passengers in interstate commerce.

(13) "Regulated level 1 aboveground storage tank" or "level 1 regulated tank" means:

(A) An AST located within a zone of critical concern, source water protection area, public surface water influenced groundwater supply source area, or any AST system designated by the secretary as a level 1 regulated tank; or

(B) An AST that contains substances defined in section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as a "hazardous substance" (42 U. S. C. § 9601(14)); or is on EPA’s Consolidated List of Chemicals Subject to the Emergency Planning and Community Right to Know Act (EPCRA), CERCLA, and §112(r) of the Clean Air Act (CAA) (known as the List of Lists) as provided by 40 C. F. R. §§ 355, 372, 302, and 68 in a concentration of one percent or greater, regardless of the AST’s location, except ASTs containing petroleum are not level 1 regulated tanks based solely upon containing constituents recorded on the CERCLA lists; or

(C) An AST with a capacity of 50,000 gallons or more, regardless of its contents or location.

(14) "Regulated level 2 aboveground storage tank" or "level 2 regulated tank" means an AST that is located within a zone of peripheral concern that is not a level 1 regulated tank.

(15) "Regulated aboveground storage tank" or "regulated tank" means an AST that meets the definition of a level 1 or level 2 regulated tank.

(16) "Release" means any spilling, leaking, emitting, discharging, escaping, or leaching of fluids from an aboveground storage tank into the waters of the state or escaping from secondary containment.

(17) "Secondary containment" means a safeguard applied to one or more aboveground storage tanks that prevents the discharge into the waters of the state of the entire capacity of the largest single tank and sufficient freeboard to contain precipitation. In order to qualify as secondary containment, the barrier and containment field must be sufficiently impervious to contain fluids in the event of a release, and may include double-walled tanks, dikes, containment curbs, pits, or drainage trench enclosures that safely confine the release from a tank in a facility catchment basin or holding pond. Earthen dikes and similar containment structures must be designed and constructed to contain, for a minimum of 72 hours, fluid that escapes from a tank.

(18) "Secretary" means the Secretary of the Department of Environmental Protection, or his or her designee.

(19) "Source water protection area" for a public groundwater supply source is the area within an aquifer that supplies water to a public water supply well within a five-year time of travel and is determined by the mathematical calculation of the locations from which a drop of water placed at the edge of the protection area would theoretically take five years to reach the well.

(20) "Zone of critical concern" for a public surface water supply source and for a public surface water influenced groundwater supply source is a corridor along streams within a watershed that warrants detailed scrutiny due to its proximity to the surface water intake and the intake’s susceptibility to potential contaminants within that corridor. The zone of critical concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the zone of critical concern is based on a five-hour time of travel of water in the streams to the intake. The width of the zone of critical concern is 1,000 feet measured horizontally from each bank of the principal stream and 500 feet measured horizontally from each bank of the tributaries draining into the principal stream.

(21) "Zone of peripheral concern" for a public surface water supply source and for a public surface water influenced groundwater supply source is a corridor along streams within a watershed that warrants scrutiny due to its proximity to the surface water intake and the intake’s susceptibility to potential contaminants within that corridor. The zone of peripheral concern is determined using a mathematical model that accounts for stream flows, gradient, and area topography. The length of the zone of peripheral concern is based on an additional five-hour time of travel of water in the streams beyond the perimeter of the zone of critical concern, which creates a protection zone of 10 hours above the water intake. The width of the zone of peripheral concern is 1,000 feet measured horizontally from each bank of the principal stream and 500 feet measured horizontally from each bank of the tributaries draining into the principal stream.

§22-30-4. Inventory and registration of existing aboveground storage tanks.

(a) To assure protection of the water resources of the state, the secretary shall compile an inventory of all aboveground storage tanks. The secretary shall prescribe a registration form for this purpose.

(b) Each owner or operator of an aboveground storage tank shall complete and submit to the secretary the registration form by July 1, 2015. The owner or operator of any aboveground storage tank placed into service on or after the effective date of this section shall complete and submit a registration form to the secretary prior to storing fluids therein. Tank registrations previously submitted to the secretary pursuant to this article shall constitute registration pursuant to this section.

(c) At a minimum, the registration form shall identify the ownership of the tank, tank location, date of installation if known, type of construction, capacity and age of the tank, the type of fluid stored therein, and the circumstances under which the registration must be updated.

If the registered tank is regulated under any existing state or federal regulatory program, the owner of the tank shall be required to provide the identifying number of any license, registration or permit issued for the tank.

(d) The secretary shall charge a registration fee of $40 per tank for all ASTs in service prior to July 1, 2015. The registration fee for ASTs placed into service on or after July 1, 2015, shall be $20 per tank. Registration fees for ASTs in service prior to July 1, 2015, shall be deposited such that half the amount is placed into the AST Administrative Fund and half the amount into the Protect Our Water Fund. Registration fees for ASTs placed into service on or after July 1, 2015, shall be deposited wholly into the AST Administrative Fund.

(1) The secretary shall propose emergency or legislative rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to set out the process and procedure for registration fee assessment and collection.

(2) In recognition of the need to expeditiously capitalize the AST Administrative Fund and the Protect Our Water Fund, the secretary may charge the fees provided for in this subsection by sending invoices for the same to the owners or operators of ASTs prior to the promulgation of the rules contemplated in subdivision (1) of this subsection.

(e) After July 1, 2015, it shall be unlawful for any owner or operator to operate or use an aboveground storage tank that has not been properly registered or for which any applicable registration fee has not been paid.

§22-30-5. Aboveground Storage Tank Regulatory Program.

(a) The secretary shall develop a regulatory program for new and existing regulated aboveground storage tanks and secondary containment that takes into account the size, location and contents of the tanks and sets out tiered requirements for regulated tanks. Level 1 tanks shall be regulated to a higher standard of tank and secondary containment integrity based upon their proximity to a public surface water supply source or public surface water influenced groundwater supply source.

(b) The rules promulgated by the secretary for regulated tanks and secondary containment shall, at a minimum, include the following:

(1) Criteria for the design, construction and maintenance of aboveground storage tanks;

(2) Criteria for the design, construction, maintenance or methods of secondary containment;

(3) Criteria for the design, operation, maintenance or methods of leak detection. Acceptable leak detection shall include, but not be limited to, visual inspections, an inventory control system together with tank testing, or a comparable system or method designed to identify leaks from aboveground storage tanks;

(4) Requirements for recordkeeping;

(5) Requirements for the development of maintenance and corrosion prevention plans;

(6) Requirements for the closure of aboveground storage tanks and any remediation necessary as a result of release from the aboveground storage tank;

(7) The assessment of a registration fee, and annual operation and response fees as determined by the secretary;

(8) Certificate to operate issuance only after the application and any other supporting documents have been submitted, reviewed and approved by the secretary;

(9) A procedure for the administrative resolution of violations including the assessment of administrative civil penalties.

(c) For those entities that are otherwise regulated under those provisions of this chapter that necessitate individual, site-specific permits or plans that require appropriate containment and diversionary structures or equipment to prevent discharged or released materials from reaching the waters of the state, the secretary may amend those permits or plans associated with those permits or both at the request of the permittee to include conditions pertaining to the management and control of regulated tanks, so long as those conditions in the opinion of the secretary are sufficient in combination with practices and protections already in place to protect the waters of the state. In its application for permit or plan modification, the permittee shall advise the secretary whether, how and to what extent the permittee adheres to other standards or plans with regard to tank and secondary containment integrity, inspection and spill prevention and response, including, without limitation, API 653 standards for Tank Inspection, Repair, Alteration and Reconstruction or STI SP001 Standards for Aboveground Storage Tanks or the requirements of the federal spill prevention and countermeasures program governed by 40 C. F. R. Part 112. Inclusion of ASTs in amended permits or plans would not relieve the owner or operator's responsibility to pay registration, certificate to operate or Protect Our Water Fund fees. Specifically, the permits or plans the secretary may amend include:

(1) Permits issued pursuant to the Surface Coal Mining and Reclamation Act, article three of this chapter;

(2) Permits issued by the Office of Oil and Gas pursuant to article six or six-a of this chapter or spill pollution and control measures plans required under 35 C. S. R. 1;

(3) Individual permits issued pursuant to the National Pollution Discharge Elimination System, article eleven of this chapter;

(4) Permits issued pursuant to the Solid Waste Management Act, article fifteen of this chapter; and

(5) Groundwater protection plans issued pursuant to article twelve of this chapter.

(d) Any entity whose permit or plan modification or amendment relating to tank integrity and secondary containment design operation and maintenance is approved by the secretary and so maintained shall be deemed to be compliant with this article and entitles the entity to a certificate to operate so long as the registration requirements of section four of this article are also met.

(e) The manner and time frames for implementation of the regulatory program required by this section shall be established by the secretary through the proposal of emergency or legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§22-30-6. Evaluation and certification.

(a) Each regulated aboveground storage tank and its associated secondary containment structure shall be evaluated by a qualified registered professional engineer or a qualified person working under the direct supervision of a registered professional engineer, regulated and licensed by the State Board of Registration for Professional Engineers, or by an individual certified to perform tank inspections by the American Petroleum Institute or the Steel Tank Institute, or by a person holding certification under another program approved by the secretary.

(b) Every owner or operator shall submit a certification that each regulated tank and its associated secondary containment structure have been evaluated by a qualified person as set forth in subsection (a) of this section and meets the standards established in accordance with section five of this article.

(c) The certification form shall be submitted to the secretary within one hundred eighty days of the effective date of the rules establishing standards that are adopted in accordance with section five of this article. Subsequent certifications shall be due at regular intervals thereafter as established by the secretary by legislative rule, but not more frequently than once per calendar year.

(d) Any person who performs a tank evaluation in accordance with subsection (a) of this section, a responsible person designated by the owner or operator and any other person designated by the secretary by legislative rule may certify aboveground storage tanks in accordance with subsection (b) of this section.

§22-30-7. Financial responsibility.

The secretary shall promulgate rules requiring owners and operators of regulated aboveground storage tanks to provide evidence of adequate financial resources to undertake reasonable corrective action for releases from regulated aboveground storage tanks based on factors including the location, contents and size of the tanks. The means of demonstrating adequate financial responsibility may include, but not be limited to, providing evidence of current insurance, guarantee, surety bond, letter of credit, proof of assets, trust fund or qualification as a self insurer. The secretary may determine which bonds and other guarantees of performance provided to the secretary pursuant to other articles of this chapter shall satisfy the requirements of this section.

§22-30-8. Corrective action.

(a) Prior to the effective date of the emergency and legislative rules promulgated pursuant to the authority granted under this article, the secretary is authorized to:

(1) Require the owner or operator of an aboveground storage tank to undertake prompt corrective action to protect human health, safety, water resources or the environment from contamination caused by a release; or

(2) Undertake immediate corrective action with respect to any release or threatened release of fluid from an aboveground storage tank when, in the judgment of the secretary, the action is necessary to protect human health, safety, water resources or the environment from contamination caused by a release.

(b) The corrective action undertaken or required by this section shall be what may be necessary to protect human health, water resources and the environment from contamination caused by a release, including the ordered cessation or closure of a source of contamination and the ordered remediation of a contaminated site. The secretary shall use funds in the Protect Our Water Fund established pursuant to this article for payment of costs incurred for corrective action taken by the secretary in accordance with this article. In undertaking corrective actions under this section and in issuing orders requiring owners or operators to undertake the actions, the secretary shall give priority to releases or threatened releases of fluid from aboveground storage tanks that pose the greatest threat to human health, water resources or the environment.

(c) Following the effective date of rules promulgated pursuant to this article, all actions or orders of the secretary shall be in conformity with those rules. Following the effective date of the rules, the secretary may utilize funds from the Protect Our Water Fund to undertake corrective action with respect to any release from an aboveground storage tank only if, in the judgment of the secretary, the action is necessary to protect human health, safety, water resources or the environment from contamination, and one or more of the following situations exists:

(1) If no person can be found within thirty days, or a shorter period as may be necessary to protect human health, safety, water resources and the environment, who is an owner or operator of the aboveground storage tank at issue and who is capable of carrying out the corrective action properly;

(2) A situation exists that requires immediate action by the secretary under this section to protect human health, safety, water resources or the environment;

(3) The cost of corrective action to be expended on an aboveground storage tank exceeds the amount of resources that the owner or operator can reasonably be expected to possess based on the information required to be submitted pursuant to this article and, considering the fluid being stored in the aboveground storage tank in question, expenditures from the Protect Our Water Fund are necessary to assure an effective corrective action; or

(4) The owner or operator of the tank has failed or refused to comply with an order of the secretary under this article or of the Environmental Quality Board under article one, chapter twenty-two-b of this code or of a court of competent jurisdiction to comply with appropriate corrective action measures.

(d) The secretary may draw upon the Protect Our Water Fund in order to take action under subdivision (1) or (2), subsection (c) of this section if the secretary has made diligent good-faith efforts to determine the identity of the owner or operator responsible for the release and:

(1) The secretary is unable to determine the identity of the owner or operator in a manner consistent with the need to take timely corrective action; or

(2) The owner or operator determined by the secretary to be responsible for the release has been informed in writing of the secretary's determination and has been requested by the secretary to take appropriate corrective action but is unable or unwilling to take proper action in a timely manner.

(e) The written notice to the owner or operator must inform the owner or operator that if it is subsequently found liable by a court of competent jurisdiction for releases pursuant to this section, the owner or operator will be required to reimburse the Protect Our Water Fund for the costs of the investigation, information gathering and corrective action taken by the secretary.

(f) If the secretary determines that immediate response to an imminent threat to human health, safety, water resources or the environment is necessary to avoid substantial injury or damage thereto, corrective action may be taken pursuant to this section without the prior written notice required by subdivision (2), subsection (d) of this section. In that case, the secretary must give subsequent written notice to the owner or operator within fifteen days after the action is taken describing the circumstances that required the action to be taken and setting forth the matters identified in subsection (e) of this section.

§22-30-9. Spill prevention and response plan.

(a) Within one hundred eighty days of the effective date of this article, each owner or operator of a regulated aboveground storage tank shall submit to the secretary a spill prevention and response plan for all regulated aboveground storage tanks at a facility or location. Owners and operators of regulated aboveground storage tanks shall file updated plans required to be submitted by this section no less frequently than every five years. The spill prevention and response plan shall at a minimum:

(1) Describe the activity that occurs at the site and provide an inventory of the types and amounts of fluids stored in regulated aboveground storage tanks at the facility. The plan shall provide a reference to the location of the safety data sheets (SDS) required by the Occupational Safety and Health Administration for all fluids stored in regulated aboveground storage tanks at the facility;

(2) Identify all facility-related positions with duties and responsibilities for overseeing the implementation of the facility's plan and list all facility emergency coordinators;

(3) Describe a preventive maintenance program, monitoring and inspection procedures, and employee training programs;

(4) Describe the general release response procedures that the aboveground storage tank facility and contract emergency personnel shall employ upon the occurrence of any release;

(5) Provide contact information for the state, county and municipal emergency management agencies and the nearest downstream public water supply intake, and designate the person or persons to be notified in the event of a release from a regulated aboveground storage tank that could reach waters of the state; and

(6) Provide the secretary with any other information he or she may reasonably request.

(b) Each owner of a regulated aboveground storage tank with an approved spill prevention and response plan shall submit to the secretary a revised plan or addendum to the plan in accordance with the requirements of this article if any of the following occur:

(1) There is a substantial modification in design, construction, operation or maintenance of any regulated aboveground storage tank, secondary containment or leak detection equipment or methods, or there are other circumstances that increase the potential for fires, explosions or releases of fluids;

(2) There is a substantial modification in emergency equipment at the facility;

(3) There are substantial changes in emergency response protocols at the aboveground storage tank facility;

(4) The plan fails in an emergency;

(5) The removal or the addition of any regulated aboveground storage tank; or

(6) Other circumstances occur for which the secretary requests an update.

(c) The secretary shall approve the spill prevention and response plan or reject the plan and require modifications as may be necessary and reasonable to assure the protection of the source water of a public water system from a release of fluids from a regulated aboveground storage tank. If rejected, the owner or operator of the regulated aboveground storage tank shall submit a revised plan to the secretary for approval within thirty days of receipt of notification of the secretary's decision. Failure to comply with a plan approved by the secretary pursuant to this section is a violation of this article.

(d) In lieu of a plan developed in accordance with the requirements of this section, the owner or operator of a regulated aboveground storage tank may certify to the secretary that it is subject to: (1) A groundwater protection plan approved by the secretary; or (2) a spill prevention control and countermeasures plan that complies the requirements of 40 C. F. R. Part 112. Such plans shall be made available for review or submitted to the secretary upon request.

(e) Nothing contained in this section relieves the owner or operator of an aboveground storage tank from his or her obligation to report any release in accordance with the provisions of this chapter and the rules promulgated thereunder.

§22-30-10. Notice to local governments and water companies.

(a) The owner or operator of a regulated aboveground storage tank shall provide notice directly to the public water system and to state, county and municipal emergency response organizations of the type and quantity of fluid stored in the regulated aboveground storage tanks at the facility and the location of the safety data sheets (SDS) associated with the fluids in storage. Subject to the protections afforded in section fourteen of this article, the information required in this subsection shall be delivered to the specific public water system and to state, county and municipal emergency response organizations that are designated by the secretary to receive required notice.

(b) In lieu of the information required in subsection (a) of this section, the tank owner or operator may provide the inventory forms and applicable documents required by sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act, subject to the protection of trade secrets and site security information allowed by section fourteen of this article.

§22-30-11. Required signage.

Every aboveground storage tank shall display, or have displayed nearby, the tank registration number, when issued by the secretary; the emergency contact number for the owner or operator of the tank; and the number for the Department of Environmental Protection's Spill Reporting Hotline.

§22-30-12. Aboveground Storage Tank Administrative Fund.

(a) The secretary shall collect a registration fee from owners or operators of each aboveground storage tank as set forth in section four of this article and an annual operating fee for each regulated aboveground tank in an amount to be promulgated in the legislative rules authorized by this article, in an amount sufficient to defray the costs of administering this article. All registration and operation fees and the net proceeds of all fines, penalties and forfeitures collected under this article, including accrued interest, shall be paid into a special revenue account, hereby created within the State Treasury, designated the Aboveground Storage Tank Administrative Fund.

(b) At the end of each fiscal year, any unexpended balance, including accrued interest, on deposit in the Aboveground Storage Tank Administrative Fund shall not be transferred to the General Revenue Fund, but shall remain in the Aboveground Storage Tank Administrative Fund for expenditure pursuant to this section.

§22-30-13. Protect Our Water Fund.

(a) Each owner or operator of a regulated aboveground storage tank shall pay an annual fee to assure adequate response to releases from aboveground storage tanks. The amount of fees assessed pursuant to this section shall be set forth by rule. The proceeds of the assessment shall be paid into a special revenue account, hereby created within the State Treasury, designated the Protect Our Water Fund" The fund shall be administered by the secretary. Expenditures from the fund shall be solely to respond to releases from aboveground storage tanks.

(b) Each owner or operator of an regulated aboveground storage tank subject to a fee assessment under subsection (a) of this section shall pay a fee based on the number, contents and location of regulated aboveground storage tanks he or she owns or operates, as applicable. The secretary shall vary the fees annually to a level necessary to produce a fund of no more than $1 million after three years from the effective date of this article, and to maintain an aggregate fund of $1 million at the beginning of each calendar year thereafter.

(c) At the end of each fiscal year, any unexpended balance, including accrued interest, on deposit in the Protect Our Water Fund shall not be transferred to the General Revenue fund, but shall remain in the Protect Our Water Fund for expenditure pursuant to this section.

(d) The secretary may enter into agreements and contracts and to expend the moneys in the fund for the following purposes:

(1) Responding to aboveground storage tank releases when, based on readily available information, the secretary determines that immediate action is necessary to prevent or mitigate significant risk of harm to human health, safety, water resources or the environment from contamination caused by a release of fluid from aboveground storage tanks in situations for which no federal funds are immediately available for the response, cleanup or containment: Provided, That the secretary shall apply for and diligently pursue all available federal funds at the earliest possible time;

(2) Reimbursing any nonresponsible parties for reasonable cleanup costs incurred with the authorization of the secretary in responding to an aboveground storage tank release; or

(3) Reimbursing any nonresponsible parties for reasonable costs incurred with the authorization of the secretary responding to perceived, potential or threatened releases from aboveground storage tanks.

(e) The secretary, through a cooperative agreement with another state regulatory agency, in this or another state, may use the fund to compensate the cooperating agency for expenses the cooperating agency incurs in carrying out corrective actions pursuant to this article.

§22-30-14. Public access to information.

(a) The public shall have access to all documents and information submitted to the department pursuant to this article, subject to the limitations contained in the state Freedom of Information Act, article one, chapter twenty-nine-b of this code, or any information designated by the Division of Homeland Security and Emergency Management as restricted from public release. Trade secrets, proprietary business information and information designated by the Division of Homeland Security and Emergency Management as restricted from public release shall be secured and safeguarded by the department. Such information or data shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees or representatives of a state or federal agency implementing the provisions of this article or any other applicable law related to releases of fluid from aboveground storage tanks that impact the state's water resources. Any person who makes any unauthorized disclosure of such confidential information or data is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than $1,000 or confined in a regional jail facility for not more than twenty days, or both.

(b) A list of the potential sources of significant contamination contained within the zone of critical concern or zone of peripheral concern as provided by the Bureau for Public Health, working in conjunction with the department and the Division of Homeland Security and Emergency Management may only be disclosed to the extent consistent with the protection of trade secrets, confidential business information and information designated by the Division of Homeland Security and Emergency Management as described above. The exact location of the contaminants within the zone of critical concern or zone of peripheral concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern or zone of peripheral concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a release to waters of the state that could affect a public water supply, information about the release shall be promptly made available to any emergency responders responding to the site of a spill or release and the general public shall be promptly notified in the event of a chemical spill, release or related emergency by the Director of Homeland Security and Emergency Management.

(c) The Director of Homeland Security and Emergency Management may promulgate emergency rules and shall propose legislative rules, pursuant to article three, chapter twenty-nine-a of this code to effectuate the provisions of this section.

§22-30-15. Inspections, monitoring and testing.

(a) For the purposes of developing or assisting in the development of any rule, conducting any study, taking any corrective action or enforcing any provision of this article, any owner or operator of an aboveground storage tank shall, upon request of the secretary:

(1) Furnish information relating to the aboveground storage tanks, their associated equipment and contents;

(2) Conduct reasonable monitoring or testing;

(3) Permit the secretary, at all reasonable times, to inspect and copy records relating to aboveground storage tanks; and

(4) Permit the secretary to have access to the aboveground storage tanks for corrective action.

(b) For the purposes of developing or assisting in the development of any rule, conducting any study, taking corrective action or enforcing any provision of this article, the secretary may:

(1) Enter at any time any establishment or other place where an aboveground storage tank is located;

(2) Inspect and obtain samples of any fluid contained in an aboveground storage tank;

(3) Conduct monitoring or testing of the aboveground storage tanks, associated equipment, contents or surrounding soils, surface water or groundwater; and

(4) Take corrective action as specified in this article.

(c) Each inspection shall be commenced and completed with reasonable promptness.

(d) To ensure protection of the water resources of the state and compliance with any provision of this article or rule promulgated thereunder, the secretary shall inspect level 1 regulated tanks at least once every three years. The secretary shall develop an inspection protocol for level 2 regulated tanks.

§22-30-16. Administrative orders; injunctive relief.

(a) When the secretary determines, on the basis of any information, that a person is in violation of any requirement of this article or the rules promulgated thereunder, the secretary may issue an order stating with reasonable specificity the nature of the violation and requiring compliance within a reasonable specified time period, or the secretary may commence a civil action in the circuit court of the county in which the violation occurred or in the circuit court of Kanawha County for appropriate relief, including a temporary or permanent injunction. The secretary or the Environmental Quality Board may stay any order issued by the secretary until the order is reviewed by the Environmental Quality Board.

(b) In addition to the powers and authority granted to the secretary by this chapter to enter into consent agreements, settlements and otherwise enforce this chapter, the secretary shall propose rules for legislative approval to establish a mechanism for the administrative resolution of violations set forth in this article through consent order or agreement as an alternative to instituting a civil action.

§22-30-17. Civil and criminal penalties.

(a) Any person who fails to comply with an order of the secretary issued under subsection (a), section sixteen of this article within the time specified in the order is liable for a civil penalty of not more than $25,000 for each day of continued noncompliance.

(b) Any owner or operator of an aboveground storage tank who knowingly fails to register or obtain a certificate to operate a regulated aboveground storage tank or submits false information pursuant to this article is liable for a civil penalty not to exceed $10,000 for each aboveground storage tank that is not registered or for which a certificate to operate a regulated aboveground storage tank is not obtained or for which false information is submitted.

(c) Any owner or operator of an aboveground storage tank who fails to comply with any requirement of this article or any standard promulgated by the secretary pursuant to this article is subject to a civil penalty not to exceed $10,000 for each day of violation.

(d) Any person who knowingly and intentionally violates any provision of this article, or any rule or order issued under or subject to the provisions of this article, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a regional jail for a period of time not exceeding one year, and be fined an amount not to exceed $25,000.

(e) Any person convicted of a second or subsequent willful violation as set forth in subsection (d) of this section is guilty of a felony and, upon conviction, may be imprisoned in a correctional facility not less than one nor more than three years, or fined not more than $50,000 for each day of violation, or both fined and imprisoned.

(f) Any person may be prosecuted and convicted under the provisions of this section notwithstanding that none of the administrative remedies provided in this article have been pursued or invoked against said person and notwithstanding that civil action for the imposition and collection of a civil penalty or an application for an injunction under the provisions of this article has not been filed against such person.

(g) Where a person holding a permit is carrying out a program of pollution abatement or remedial action in compliance with the conditions and terms of a corrective action plan approved by the secretary, the person is not subject to criminal prosecution for pollution recognized and authorized by the approved corrective action plan.

(h) Civil penalties are payable to the secretary. All moneys collected under this section for civil fines collected under this article shall be deposited into either the AST Administrative Fund or the Protect Our Water Fund. All money deposited into these accounts shall be used by the secretary solely for the purposes described in sections twelve and thirteen of this article.

§22-30-18. Appeal to Environmental Quality Board.

Any person aggrieved or adversely affected by an action, decision or order of the secretary made and entered in accordance with the provisions of this article may appeal to the Environmental Quality Board, pursuant to the provisions of article one, chapter twenty-two-b of this code.

§22-30-19. Duplicative enforcement prohibited.

No enforcement proceeding brought pursuant to this article may be duplicated by an enforcement proceeding subsequently commenced under some other article of this code with respect to the same transaction or event, unless the subsequent proceeding involves the violation of a permit or permitting requirement of the other article.

§22-30-20. Reporting and accountability.

(a) Every year, the secretary shall submit a report to the Joint Legislative Oversight Commission on State Water Resources and the Joint Committee on Government and Finance which assesses the effectiveness of this article and provides other information as may be requested by the commission to allow it to assess the effectiveness of this article, including, without limitation, the secretary's observations concerning all aspects of compliance with this article and any legislative rules promulgated pursuant hereto, the regulatory process, and any pertinent changes to federal rules or regulations.

(b) The secretary shall keep accurate accounts of all receipts and disbursements related to the administration of the Aboveground Storage Tank Administrative Fund and shall make a detailed annual report to the Joint Legislative Oversight Commission on State Water Resources and the Joint Committee on Government and Finance addressing the administration of the fund.

(c) The secretary shall keep accurate accounts of all receipts and disbursements related to the administration of the Protect Our Water Fund and shall make a specific annual report to the Joint Legislative Oversight Commission on State Water Resources and the Joint Committee on Government and Finance addressing the administration of the fund.

§22-30-21. Interagency cooperation.

(a) In implementation of this article, the secretary shall coordinate with the Department of Health, the West Virginia Public Service Commission, the Division of Homeland Security and Emergency Management and local health departments to ensure the successful planning and implementation of this act, including consideration of the role of those agencies in providing services to owners and operators of regulated aboveground storage tanks and public water systems.

(b) The Division of Homeland Security and Emergency Management shall also coordinate with state and local emergency response agencies to facilitate a coordinated emergency response and incident command and communication between the owner or operator of the regulated aboveground storage tank, the state and local emergency response agencies, and the affected public water systems.

§22-30-22. Imminent and substantial danger.

(a) Notwithstanding any other provision of this code to the contrary, upon receipt of evidence that an aboveground storage tank may present an imminent and substantial danger to human health, water resources or the environment, the secretary may bring suit on behalf of the State of West Virginia in the circuit court of the county in which the imminent and substantial danger exists or in the circuit court of Kanawha County against any owner or operator of an aboveground storage tank who has contributed or who is contributing to imminent and substantial danger to public health, safety, water resources or the environment to order the person to take action as may be necessary to abate the situation and protect human health, safety, water resources and the environment from contamination caused by a release of fluid from an aboveground storage tank.

(b) Upon receipt of information that there is any aboveground storage tank that presents an imminent and substantial danger to human health, safety, water resources or the environment, the secretary shall require the owner or operator of the tank to provide immediate notice to the appropriate state and local government agencies and any affected public water systems. In addition, the secretary shall require notice of any danger to be promptly posted at the aboveground storage tank facility containing the aboveground storage tank at issue.

§22-30-23. Promulgation of rules.

The secretary shall promulgate emergency and legislative rules as necessary to implement the provisions of this article in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§22-30-24. Powers and duties of secretary.

 (a) In addition to the powers and duties prescribed in this chapter or otherwise provided by law, the secretary has the exclusive authority to perform all acts necessary to implement this article.

(b) The secretary may receive and expend money from the federal government or any other sources to implement this article.

(c) The secretary may revoke any registration or certificate to operate for a significant violation of this article or the rules promulgated hereunder.

(d) The secretary may issue orders, assess civil penalties, institute enforcement proceedings, and prosecute violations of this article as necessary.

(e) The secretary, in accordance with this article, may order corrective action to be undertaken, take corrective action, or authorize a third party to take corrective action.

(f) The secretary may recover the costs of taking corrective action, including costs associated with authorizing third parties to perform corrective action. Costs may not include routine inspection and administrative activities not associated with a release.

(g) The secretary shall promulgate for review and consideration by the West Virginia Legislature in the regular session of the Legislature, 2020, legislative rules to incorporate the relevant provisions of this article in the Groundwater Protection Rules for Coal Mining, 38 CSR 2F, for tanks and devices located at coal mining operations.

§22-30-25. Waiving certain requirements of this article for specified categories of aboveground storage tanks as designated by the department by legislative rule.

The secretary may designate, by rules proposed for legislative approval in accordance with article three, chapter twenty-nine-a of this code, additional categories of aboveground storage tanks for which one or more of the requirements of this article may be waived upon a determination that such categories of aboveground storage tanks either do not represent a substantial threat of contamination or they are currently regulated under standards that are consistent with the protective standards and requirements set forth in this article and rules promulgated thereunder.

§22-30-26. Secretary's authority to require individual NPDES permits within a zone of critical concern.

Any person who holds a National Pollutant Discharge Elimination System general permit pursuant to the federal Water Pollution Control Act or the West Virginia Water Pollution Control Act, article eleven of this chapter, for a site that contains one or more regulated aboveground storage tanks may be required by the secretary to apply for and hold an individual permit under those acts. Any general NPDES permit in effect on the effective date of this act shall remain in effect until the secretary either issues or denies the individual NPDES permit.

§22-31-1. Short title.

This article may be known and cited as the Public Water Supply Protection Act.

§22-31-2. Public Water System Supply Study Commission.

(a) There is hereby established the Public Water System Supply Study Commission which is created for the purpose of studying and reporting back to the Joint Committee on Government and Finance on the following subject matters:

(1) A review and assessment of the effectiveness and the quality of information contained in updated source water protection plans required for certain public water systems by the provisions of section nine-c, article one, chapter sixteen of this code;

(2) A review and assessment of the effectiveness of legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to identified potential sources of significant contamination, and increasing public awareness and public participation in the emergency planning and response process;

(3) The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system's primary source of supply;

(4) A review and consideration of the recommendations of the U. S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer Crop Science incident of 2008; and

(5) Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies, and to pursue other measures designed to protect the integrity of public water service.

(b) The study commission shall consist of the following twelve members, who shall be appointed and comprised as follows:

(1) Four members appointed by the Governor, one of whom shall be a professional engineer experienced in the design and construction of public water systems; one of whom shall be a hydrologist or other expert experienced in determining the flow characteristics of rivers and streams; one of whom shall be an environmental toxicologist or other public health expert who is familiar with the impact of contaminants on the human body; and one citizen representative;

(2) One representative designated by the Rural Water Association;

(3) One representative designated by the Municipal League;

(4) The Secretary of the Department of Environmental Protection or his or her designee;

(5) The Commissioner of the Bureau for Public Health or his or her designee who shall serve as chair;

(6) The Director of the Division of Homeland Security and Emergency Management or his or her designee;

(7) The Chairman of the Public Service Commission or his or her designee;

(8) Two representatives designated by the Business Industry Council; and

(9) One representative designated by West Virginia Rivers Coalition.

(c) Reports by the Commission shall be submitted to the Joint Committee on Government and Finance on or before December 15 of each year, beginning December 15, 2014.

(d) The study commission shall terminate on June 30, 2019.

§22-31-3.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-4.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-5.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-6.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-7.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-8.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-9.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-10.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-11.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-31-12.

Repealed.

Acts, 2015 Reg. Sess., Ch. 1.

§22-15A-3a. Creation of Adopt-A-Stream Program required.

(a) The Adopt-A-Highway Program was established in the late 1980s to improve the quality of the state’s environment by encouraging public involvement in the elimination of highway litter. That program is cosponsored by the Division of Highways and the Department of Environmental Protection, Rehabilitation Environmental Action Plan. Its objective is to save taxpayer money by increasing public awareness and to serve as an educational tool by focusing on the consequences of littering. The program offers volunteers the opportunity to take charge of their own environment by making a positive effort to create a cleaner, more aesthetic place in which to live.

In West Virginia there are currently 25,000 volunteers who regularly pick up litter on 4,000 miles of highway. They have been responsible for removing more than 40 million pounds of litter since the program began.

(b) As with the Adopt-A-Highway Program, individuals, families, churches, businesses, schools, civic organizations, government agencies, scouting groups, fraternities, and communities may participate in an Adopt-A-Stream Program, which the department shall create and implement. Participants 17 years of age or younger must be accompanied by an adult. Any stream or river within the state of West Virginia is eligible for adoption, with the exception of streams or rivers determined to be unsafe by the department. Adopted streams or river sections must be at least one mile long. Applications for adoptions will be reviewed and approved or denied at the department’s discretion. The Litter Control Fund, or other sources of funding deemed appropriate by the secretary, may be used to support the Adopt-A-Stream Program.

(c) Adoptions are for a period of three years, during which time at least one cleanup is required per year. Collected litter will be placed at designated locations approved by the department. The department may coordinate with volunteers, local authorities, and state agencies for removal and disposal of collected litter. Garbage bags, safety training, and gloves are to be furnished by the program.

(d) Adopted streams or rivers may be identified by a sign at a location along the adopted section bearing the Adopt-A-Stream logo and the name of the adopter after the first cleanup has been completed. Volunteers who complete one required litter pickup within the first year of the three-year contract period shall be awarded a certificate of accomplishment signed by the secretary.

(e) Any stream obstruction or other cause for concern observed by volunteers may be reported to the Department of Environmental Protection, Division of Natural Resources, the State Conservation Committee, or the appropriate local county emergency manager.

(f) The secretary may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code.

§22-6-29a. Oil and Gas Abandoned Well Plugging Fund.

(a)(1) This section may be referred to as the Oil and Gas Abandoned Well Plugging Fund Act. There is established within the Treasury of the State of West Virginia the special use fund known as the Oil and Gas Abandoned Well Plugging Fund.

(2) The Oil and Gas Abandoned Well Plugging Fund shall be administered by the secretary solely for the purposes of carrying out the provisions of this section.

(3) Any balance remaining in the Oil and Gas Abandoned Well Plugging Fund at the end of any state fiscal year does not revert to the General Revenue Fund but shall remain in the special revenue account and may be used only as provided in this section. The revenues deposited in the Oil and Gas Abandoned Well Plugging Fund may not be designated as nonaligned state special revenue funds under §11B-2-32 of this code.

(b)(1) Using funds from the Oil and Gas Reclamation Fund and the Oil and Gas Abandoned Well Plugging Fund, the secretary shall plug and reclaim abandoned oil and gas wells without a responsible operator in accordance with plans and specifications developed pursuant to the provisions of this article relating to the plugging and reclamation of wells, and the rules establishing well plugging standards adopted thereunder.

(2) Funds from the Oil and Gas Abandoned Well Plugging Fund may only be used to plug abandoned oil and gas wells without a responsible operator and to reclaim the property disturbed from the plugging.

(3) On or before July 1 of each year, the secretary shall make an annual report to the Governor and the Legislature as to the use of the Oil and Gas Abandoned Well Plugging Fund and the Oil and Gas Reclamation Fund. The report shall include the balance in both funds on June 1 of each year. The secretary’s annual report shall set forth the number of wells reclaimed or plugged through the use of the Oil and Gas Reclamation Fund and the Oil and Gas Abandoned Well Plugging Fund in the previous year. The report shall identify each reclamation and plugging project, state the number of wells plugged thereby, show the county in which the wells are located, and make a detailed accounting of all expenditures from the Oil and Gas Reclamation Fund and from the Oil and Gas Abandoned Well Plugging Fund. The annual report shall also include a five-year plan detailing current and future projects and activities to plug and reclaim wells.

(4) Wells shall be plugged, and plugged wells reclaimed by contract entered into by the secretary on a competitive bid basis as provided for under the provisions of §5A-3-1 et seq. of this code and the rules promulgated thereunder.

§22-6A-7a. Modifications of permits.

A permit issued pursuant to this article may be modified to address changes to the permit if the secretary determines that the modification fully meets all applicable requirements and is consistent with the issuance of the original permit.

The secretary may deny the application for a permit modification as outlined for new permits under this article.

A request to modify a permit issued pursuant to this article shall be on forms prescribed by the secretary and accompanied by a fee of $2,500.

§22-15A-30. Reclamation of Abandoned and Dilapidated Properties Program.

(a) To assist county commissions, municipalities, urban renewal authorities created pursuant to §16-18-1 et seq. of this code, and land reuse agencies and municipal land banks created pursuant to §31-18E-1 et seq. of this code, in their efforts to remediate abandoned, blighted, and dilapidated structures or properties as provided in this code, the Department of Environmental Protection may develop a program called the Reclamation of Abandoned and Dilapidated Properties Program. Using the fund established in subsection (b) of this section, the Department of Environmental Protection may work with county commissions, municipalities, urban renewal authorities, land reuse agencies, and municipal land banks to implement redevelopment plans which will, at a minimum, establish prioritized inventories of structures eligible to participate in the program, offer reuse options for sites, and recommend actions county commissions or municipalities may take to remediate abandoned and dilapidated structures in their communities.

(b) There is created in the State Treasury a special revenue fund known as the Reclamation of Abandoned and Dilapidated Properties Program Fund. The fund shall be comprised of any money granted by charitable foundations, allocated by the Legislature, allocated from federal agencies, and earned from the investment of money held in the fund, and all other money designated for deposit to the fund from any source, public or private. The fund shall operate as a special revenue fund and all deposits and payments into the fund do not expire to the General Revenue Fund but shall remain in the account and be available for expenditure in succeeding fiscal years.

(c) The fund, to the extent that money is available, may be used solely to assist county commissions, municipalities, urban renewal authorities, land reuse agencies, and municipal land banks to remediate abandoned and dilapidated structures and properties by demolishing, deconstructing, or redeveloping them together with predevelopment expenses related thereto and other activities as authorized by a charitable grant or legislative appropriation. The fund may also be used to defray costs incurred by the Department of Environmental Protection in administering the provisions of this section. However, no more than five percent of money transferred from the Solid Waste Facility Closure Cost Assistance Fund may be used for administrative purposes.

(d) The Department of Environmental Protection, in consultation with the State Fire Marshal, Insurance Commissioner, the Auditor, the Secretary of Revenue, and the Legislative Auditor, shall conduct a review of the needs of county commissions, municipalities, urban renewal authorities, land reuse agencies, and municipal land banks. On or before December 31, 2023, the Department of Environmental Protection shall submit to the Joint Committee on Government and Finance a comprehensive report of that review, along with recommendations that are substantiated by the findings of the review that may be taken to meet the needs of the state in demolishing and redeveloping abandoned and dilapidated structures and properties.

(e) Statewide contracts. — The Department of Environmental Protection may cooperate with the Purchasing Division of the Department of Administration to establish one or more statewide contracts for services to be utilized by county commissions, municipalities, urban renewal authorities, land reuse agencies, and municipal land banks to implement the purposes of this section.

(f) The Department of Environmental Protection may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code, to include, but not be limited to, governing the disbursement of money from the fund, establishing the Reclamation of Abandoned and Dilapidated Properties Program, directing the distribution of money from the fund, entering contracts statewide contracts, and establishing criteria for eligibility to receive money from the fund.

(g) Nothing in this section shall be construed to limit, restrain, or otherwise discourage this state and its political subdivisions from disposing of abandoned and dilapidated structures in any other manner provided by the laws of this state.

§22-15-24. Composting authorized.

(a) Notwithstanding any provision of this code to the contrary, composting of organic materials, including, but not limited to, yard waste, food scraps, food-processing residue, soiled or unrecyclable paper, animal carcasses, and agricultural waste may be disposed of by composting in this state.

(b) Any products sold as a result of composting are required to comply with the provisions of §19-15-1 et seq. of this code.

§22-32-1. Legislative findings and purpose.

(a) The Legislature finds that the State of West Virginia has an interest in assuring that wind generation facilities and solar generation facilities are properly decommissioned and reclaimed once the facility has been permanently closed.

(b) The Legislature further finds that the most efficient manner by which to protect the citizens of the State of West Virginia is to require that wind generation facilities and solar generation facilities secure bonding sufficient to pay for all decommissioning and reclamation costs of the property on which wind generation facilities and solar generation facilities are operated.

(c) Therefore, in view of the findings relating to the decommissioning and reclamation of wind generation facilities and solar generation facilities, the Legislature declares it to be the public policy of the State of West Virginia to eliminate the present danger resulting from abandoned wind generation facilities and solar generation facilities and that in order to provide for the public health, safety, and welfare, it is necessary to enact legislation to those ends by requiring companies that construct and operate wind generation facilities and solar generation facilities to post bonds and execute agreements sufficient to cover the costs of decommissioning and reclamation in the event they are abandoned after closure.

§22-32-2. Short title.

This article shall be known and cited as The West Virginia Wind and Solar Energy Facility Reclamation Act.

§22-32-3. Definitions.

As used in this article, unless the context requires otherwise, the following definitions apply:

(a) “Board” means the Environmental Quality Board provided for in §22B-1-7 of this code.

(b) “Decommission” or “decommissioning” means:

(1) The removal and proper disposal of the solar generation facility and its foundation after the end of the facility’s useful life or abandonment; or

(2) The removal and proper disposal of an aboveground wind turbine tower and its foundation after the end of a wind generation facility’s useful life or abandonment; and

(3) Except as otherwise provided in §22-32-4 of this code, the removal and proper disposal of buildings, equipment, cabling, electrical components, roads, or any other facilities associated with a wind generation or solar generation facility; and

(4) Except as otherwise provided in §22-32-4 of this code, the reclamation of the surface lands upon which buildings, equipment, and equipment foundations using backfill and compacting of soil in order to return the surface to beneficial use and to prevent adverse hydrologic effects.

(c) “Department”, “agency”, and “DEP” mean the West Virginia Department of Environmental Protection.

(d) “Owner” means a person who owns a wind generation or solar generation facility operated in West Virginia for the generation of electricity.

(e) “Person” means any individual, firm, partnership, company, association, corporation, limited liability company, city, town, or local governmental entity or any other state, federal, or private entity, whether organized for profit or not.

(f) “Solar generation facility” means an installation or combination of solar panels or plates, including a canopy or array, and other associated property, including appurtenant land, improvements, and personal property, that are normally operated together to capture and convert solar radiation to produce electricity, including flat plate, focusing solar collectors, or photovoltaic solar cells, and that has a nameplate capacity, singularly or in the aggregate, greater than or equal to 1.0 megawatts.

(g) “Wind generation facility” means any combination of a physically connected wind turbine or turbines, associated prime movers, and other associated property, including appurtenant land, improvements, and personal property, that are normally operated together to produce electric power from wind and that have a nameplate capacity, singularly or in the aggregate, greater than or equal to 1.0 megawatts.

(h) “Bond” means a surety bond or any other arrangement, including but not limited to letters of credit and escrow accounts, that represent a financial guarantee from the owner of a wind generation facility or solar generation facility to meet decommissioning requirements as established in this Act.

§22-32-4. Bonding required.

(a) Within 12 months of a wind generation facility or solar generation facility commencing commercial operation, except as provided in subsections (b) and (c) of this section, the owner of a wind generation facility or solar generation facility operating in West Virginia shall:

(1) Notify the Department of Environmental Protection (DEP) in writing of the date that the facility began commercial operation;

(2)(A) Submit a plan, certified by a qualified independent licensed professional engineer, for decommissioning the facility to the DEP in compliance with DEP standards and technical specifications including a scope of work to be completed and cost estimates for completion and salvage estimates, taking into account local siting conditions; or (B) if exempt hereunder, submit a copy of a properly executed and legally binding decommissioning agreement with all attachments, schedules, and addendums thereto;

(3) Provide the DEP with any other necessary information in accordance with this article and rules adopted pursuant to this article in order for the department to determine bond requirements in accordance with this section; and

(4) Submit a fee for a new application of $100 per megawatt of nameplate generation capacity or a fee for any modification of $50 per megawatt of nameplate generation capacity to be deposited into the Wind and Solar Decommissioning Account and utilized for implementing this article and its rules.

(b) If a wind generation facility or solar generation facility commenced commercial operation before July 1, 2021, the owner of the facility shall submit to the department the information required in subsection (a) of this section on or before July 1, 2022.

(c) If a wind generation facility or solar generation facility commenced commercial operation before July 1, 2021, and the owner of the facility submitted information required by subsection (a) of this section on or before July 1, 2021, the owner is not required to resubmit the information.

(d) If a property owner and the owner of a wind generation facility or solar generation facility and to the extent necessary any local governing body reach an agreement concerning: (1) Alternative restoration of buildings, equipment, other associated property (including appurtenant land, improvements, and personal property), cabling, electrical components, roads, or any other associated facilities (instead of removal); or (2) alternative plans for reclamation of surface lands; or (3) both, the agreement must be provided to the DEP for review and approval by the Cabinet Secretary or his assigns. The DEP must approve or deny the alternative plan submission within 90 days of receipt. Decommissioning agreements which legally bind exempt parties are not subject to approval or modification by DEP but are subject to review and comment by DEP.

(e)(1) Upon application by the wind generation facility or solar generation facility, the DEP may modify a plan for decommissioning and adjust bond requirements in accordance with this article.

(2) The DEP shall notify the owner of the facility of any modification. The owner of the wind generation facility or solar generation facility may appeal a modification by the DEP of a plan for decommissioning to the Environmental Quality Board within 30 days of receiving notice of the modification to the plan.

(f) To determine the amount of a bond required in accordance with this act, the DEP shall take into account the report submitted with an application and assess a bond value based upon the total disturbed acreage of land upon which the wind generation or solar generation facility is operated, less salvage value: Provided, That the amount of the bond required shall not exceed the total projected future cost of decommissioning, less salvage value.

(g) Except as provided in subsection (i) of this section, the owner of a wind generation facility or solar generation facility shall submit to the DEP a bond payable to the State of West Virginia in a form acceptable by the DEP and in the sum determined by the DEP, conditioned on the faithful decommissioning of the wind generation facility or solar generation facility.

(h)(1) Except as provided in subsection (i) of this section, if a wind generation facility or solar generation facility commenced commercial operation on or before July 1, 2021, the operator shall submit the decommissioning bond to the DEP on or before July 1, 2022.

(2) Except as provided in subsection (i) of this section, if a wind generation facility or solar generation facility commenced commercial operation after July 1, 2021, the operator shall submit the decommissioning bond to the DEP within one year of the date on which the wind generation facility or solar generation facility first produces electricity for consumer or industrial use.

(i) An owner of a wind generation facility or solar generation facility is exempt from the requirements of this section if:

(1) The facility has less than 1.0 megawatts in nameplate capacity;

(2) The facility is operated by a regulated public utility who can successfully demonstrate to the Public Service Commission and the DEP an acceptable showing of financial integrity and long-term viability; or

(3) The facility is legally bound by a decommissioning agreement, based upon a qualified independent party and executed before the effective date of this article; or is or was granted a siting certificate or other authorization to construct by the Public Service Commission, conditioned upon the execution of such agreement before the effective date of this article: Such facilities are exempt, unless or until the facility, is (A) found to be in breach of such agreement or such agreement is found to be unenforceable, (B) sold or transferred to a party or parties not bound under such agreement, or (C) substantially expanded in total disturbed acreage.

(j)(1) If the owner of the wind generation facility or solar generation facility fails to submit a decommissioning bond acceptable to the DEP or the properly executed and legally binding decommissioning agreement within the time frame required by this section, the DEP shall provide notice to the facility owner. If, after 30 days, the owner of a wind generation facility or solar generation facility has not submitted a decommissioning bond or such agreement, the DEP may assess an administrative penalty of not more than $10,000 for the first day of violation and may assess an additional administrative penalty of not more than $500 for each day the failure to submit the decommissioning bond continues.

(2) The owner of the wind generation facility or solar generation facility may appeal a penalty assessment to the Environmental Quality Board within 30 days after receipt of written notice of the penalty. The provisions of §22B-1-1 et seq. of this code shall apply to such appeals.

(k) If the owner of a bonded wind generation facility or solar generation facility transfers ownership of the facility to a successor owner, the first owner’s bond must be released after 90 days. The new owner of a bonded facility shall submit any necessary bond within 90 days after transfer of ownership or be subject to penalties in accordance with this section. The new owner of an unbonded facility shall submit any necessary bond within 90 days after transfer of ownership or be subject to penalties in accordance with this section.

(l) Once every five years, the owner of a wind generation facility or solar generation facility may submit an amended plan for the DEP’s approval. As part of the submission, the owner of a wind generation facility or solar generation facility may also apply to the DEP for a reduction in the amount of the decommissioning bond applicable to the wind energy facility or solar generation facility. The owner’s application to the DEP must include written evidence of a reduction in the total disturbed acreage upon which the facility is sited and a modification fee of $50 per megawatt of nameplate generation capacity.

(m) Submitting a bond or a properly executed and legally binding decommissioning agreement in accordance with this section does not absolve the owner of a wind generation facility or solar generation facility from complying with all other applicable laws, rules, regulations, and requirements applicable to a wind generation facility or solar generation facility.

(n) The Public Service Commission of West Virginia shall condition all siting certificates issued on full compliance, as determined by the DEP, with the provisions of this article and the rules promulgated hereunder and shall not require further decommission bonding. Entities subject to and in compliance with this article shall not be subjected to any municipal, county, or local political subdivision’s code, ordinances, rules, or regulations including additional decommission bonding.

(o) DEP shall issue a decision approving, approving with modifications, or denying an application, plan, amended plan, modification, or bond within 90 days of receipt.

(p) Any person adversely affected by a decision of DEP to approve or deny a decommissioning plan; establish the amount of a decommissioning bond; approve or deny an application to modify a decommissioning plan or bond; grant or release a decommissioning bond; or to forfeit a decommissioning bond may appeal that decision to the Environmental Quality Board and thereafter to the appropriate court in accordance with the provisions of §22B-1-1, et seq of this code.

§22-32-5. Wind and solar decommissioning account, bonds to be held.

(a) This article establishes a Wind and Solar Decommissioning Account within the State Treasury. There must be paid into the account:

(1) Fees and penalties collected in accordance with the article; and

(2) Interest income earned on the account.

(b)(1) Money in the account may only be used by the Department of Environmental Protection (DEP) in implementing this article and rules adopted pursuant to this article.

(2) The DEP shall administer this program using existing resources and money in the account.

(c) The DEP shall maintain and hold bonds or other surety received by the DEP as authorized by this article for use in accordance with this article.

§22-32-6. Bond release.

(a)(1) Subject to subdivision (2) of this subsection, the Department of Environmental Protection (DEP) shall release the bond if it is satisfied that an owner has properly decommissioned a wind generation facility or solar generation facility in accordance with the plan required by this article.

(2) At any time, an owner of a wind generation facility or solar generation facility may petition the DEP for release of the bond, and the DEP shall reply with a determination within 90 days.

(b) If the owner of a wind generation facility or solar generation facility fails to properly decommission a wind generation facility or solar generation facility and has not commenced action to rectify deficiencies within 90 days after notification by the DEP, the DEP shall cause the bond to be forfeited. The DEP, through its Office of Environmental Remediation or by contract with a private entity, may take any necessary actions to decommission the wind generation facility or solar generation facility. Upon completion, the DEP may file suit to enforce the permit conditions, plans, and agreements to recoup the cost of decommissioning and reclamation in the circuit court of Kanawha County or in the circuit court of the county in which the wind generation facility or solar generation facility is located.

§22-32-7. Rulemaking.

The Department of Environmental Protection (DEP) may promulgate such emergency, interpretive, legislative, and procedural rules as the secretary deems to be useful or necessary to carry out the purpose of this article and to implement the intent of the Legislature in accordance with the provisions of §29A-3-1 et seq. of this code, prescribing:

(a) Standards and procedures for reclamation, submission of applications and agreements, and reasonable bonds with good and sufficient surety by the owners of wind generation facilities and solar generation facilities;

(b) The collection of fees and penalties in accordance with this article;

(c) Criteria and the process for releasing a bond in accordance with this article;

(d) The DEP’s use of a bond in the event that the owner of a wind generation facility or solar generation facility fails to decommission a wind generation facility or solar generation facility;

(e) Information required by the department to determine bond requirements in accordance with this article; and

(f) Any additional requirements to ensure compliance with this article.

§22-32-8. Decommissioning agreements.

Decommissioning agreements entered by wind and solar facilities not exempted from this Act shall address, at a minimum:

(a) The term and scope of the agreement, including access and easement rights for decommissioning activities thereunder;

(b) The establishment of a bond or fund for decommissioning activities; provisions governing the same; initial balances; and whether an escrow agreement is required for the fund;

(c) The requirement to review, amend, and restate the decommissioning agreement every five years and adjust the required balance of the bond or fund for decommissioning activities;

(d) The Department of Environmental Protection’s right to review, modify, and approve the independent third-party’s plan: Provided, that the Department of Environmental Protection’s approval of an qualified independent third-party evaluation shall not be unreasonably withheld;

(e) Industry standards or citations to the same to be met for decommissioning wind and solar facilities, including a statement of the restoration goal and the treatment of abandoned equipment on owned or leased property;

(f) The process for making claims and disbursements under the agreement’s decommissioning fund;

(g) The termination of the decommissioning agreement following the completion of decommissioning activities;

(h) Required notices;

(i) The assignment of rights and obligations under the agreement; and

(j) Force majeure provisions excusing performance or delays in performance due to fire, earthquake, flood, tornado, disasters, or act of God, terrorism, pandemic, change of law, or any other cause beyond a party’s control.

The secretary of the Department of Environmental Protection may propose rules for legislative approval in accordance with the provisions of chapter 29A of this code establishing a model decommissioning agreement for wind and solar facilities governed under this act.

§22-11B-1. Statement of Purpose.

It is the purpose of this article to:

(1) Foster, encourage, promote, and establish a legal and regulatory framework for the development and approval of underground carbon dioxide sequestration facilities;

(2) Designate a state agency responsible for establishing standards and rules for the development and approval of underground carbon dioxide sequestration and storage facilities; and

(3) Safeguard, protect and enforce the correlative rights of operators, mineral owners, pore space owners, and surface owners in that each may obtain just and reasonable compensation for their respective contribution for underground carbon dioxide sequestration facilities.

§22-11B-10. Cooperative agreements.

The secretary is authorized to enter into cooperative agreements with other governments or government entities for the purpose of regulating carbon dioxide sequestration projects that extend beyond state regulatory authority under this article.

§22-11B-11. Ownership of carbon dioxide.

The storage operator shall be the owner of the carbon dioxide injected into and stored in a storage reservoir approved under this article and shall maintain ownership and control until the secretary issues a Certificate of Underground Carbon Dioxide Storage Project Completion. While the storage operator has ownership, the operator is liable for any damage the carbon dioxide may cause, including damage caused by carbon dioxide that escapes from the storage facility.

§22-11B-12. Certificate of project completion, release, transfer of title and custody, filing.

(a) After carbon dioxide injections into a reservoir end and upon application by the storage operator demonstrating compliance with this article, the secretary may issue a Certificate of Underground Carbon Dioxide Storage Project Completion (“completion certificate”).

(b) The completion certificate may only be issued after public notice and hearing. The secretary shall establish notice requirements for this hearing by legislative rule.

(c) The completion certificate may not be issued until at least 10 years after carbon dioxide injections end.

(d) The completion certificate may only be issued if the storage operator:

(1) Is in full compliance with all laws and other requirements governing the storage facility, including, without limitation, the terms of any underground injection control permit associated with the facility and other applicable requirements;

(2) Demonstrates that it has addressed all pending claims regarding the storage facility’s operation; and

(3) Demonstrates that the storage reservoir is reasonably expected to retain the carbon dioxide stored in it.

(e) As of the effective date of a completion certificate:

(1) Ownership of the stored carbon dioxide transfers, without payment of any compensation, to the owners of the pore space as established in §22-11B-18 of this code;

(2) Ownership acquired by the pore space owners under subdivision (e)(1) of this section includes all rights and interests in the stored carbon dioxide and any associated leasing rights; Provided, That all liability and regulatory requirements associated with the stored carbon dioxide shall become the responsibility of the state and the state shall defend, indemnify, and hold harmless the pore space and surface owners against all claims using only funds from the Carbon Dioxide Storage Facility Trust Fund;

(3) The storage operator and all persons who transported and/or generated any stored carbon dioxide are released from all liability and regulatory requirements associated with the storage facility;

(4) Any bonds posted by the storage operator shall be released; and

(5) Notwithstanding ownership of the stored carbon dioxide in the pore space owners as provided herein, monitoring, and managing the storage facility shall become the state’s responsibility to be overseen by the secretary utilizing only money from the Carbon Dioxide Storage Facility Trust Fund until such time as the federal government assumes responsibility for the long-term monitoring and management of storage facilities.

(f) The secretary shall require that a copy of the completion certificate and a survey of the storage field be filed with the county recorder in the county or counties where the carbon dioxide storage facility is located.

§22-11B-13. Carbon Dioxide Storage Facility Administrative Fund.

(a) There is hereby created in the State Treasury a special revenue fund to be known as the Carbon Dioxide Storage Facility Administration Fund. Expenditures from the fund shall be made by the secretary for the purposes set forth in this article, and are not authorized from collections, but are to be made only in accordance with appropriation from the Legislature and §12-3-1 et seq. of this code. The fund may only be used for the purpose of payment of all expenses of the department in processing permit and certificate applications; regulating storage facilities during their construction, operation, and pre-closure phases; and making storage amount determinations under §22-11B-17 of this code. Any balance remaining in the fund at the end of any fiscal year shall not revert to the General Revenue Fund but shall remain in the special revenue fund. The moneys accrued in the fund, any interest earned thereon, and yield from investments by the State Treasurer or West Virginia Investment Management Board are reserved solely and exclusively for the purposes set forth in this section.

(b) The secretary may, through a cooperative agreement with another agency, use money from the fund to compensate the cooperating agency for expenses that cooperating agency incurs in carrying out regulatory responsibilities that agency may have over a storage facility.

§22-11B-14. Application fee, deposit, use in cooperative regulatory functions.

Permit applicants and operators seeking completion certificates shall pay the secretary an application fee, established by legislative rule, based upon each ton of carbon dioxide stored or to be stored at the facility. This fee shall be deposited in the Carbon Dioxide Storage Facility Administrative Fund.

§22-11B-15. Carbon Dioxide Storage Facility Trust Fund.

(a) There is hereby created in the State Treasury a special revenue fund to be known as the Carbon Dioxide Storage Facility Trust Fund. Expenditures from the fund shall be made by the secretary for the anticipated expenses associated with the long-term monitoring and management of closed storage facilities, and are not authorized from collections, but are to be made only in accordance with appropriation from the Legislature and §12-3-1 et seq. of this code. Any balance remaining in the fund at the end of any fiscal year does not revert to the General Revenue Fund, but remains in the special revenue fund. The moneys accrued in the fund, any interest earned thereon, and yield from investments by the State Treasurer or West Virginia Investment Management Board are reserved solely and exclusively for the purposes set forth in this section.

(b) The secretary may, through a cooperative agreement with another agency, use money from the fund to compensate the cooperating agency for expenses that cooperating agency incurs in carrying out regulatory responsibilities that agency may have over a storage facility.

§22-11B-16. Operation fee, use, report to legislature.

(a) Storage operators shall pay the secretary a fee on each ton of carbon dioxide injected for storage. The fee shall be in the amount set by legislative rule. The amount shall be based on the contribution of the storage facility and the source of the carbon dioxide to the energy and agriculture production economy of West Virginia and the secretary’s anticipated expenses associated with the long-term monitoring and management of closed storage facilities. This fee shall be deposited in the Carbon Dioxide Storage Facility Trust Fund.

(b) The secretary shall file with the Legislature’s Joint Committee on Government and Finance a report discussing whether the amount in the Carbon Dioxide Storage Facility Trust Fund and fees being paid into it are sufficient to satisfy the fund’s objectives. The first report is due December 31, 2025, and subsequent reports are due every four years thereafter.

§22-11B-17. Determining storage amounts, carbon credits, fee.

(a) The secretary, under procedures and criteria developed by legislative rule, shall determine the amount of injected carbon dioxide stored in a reservoir that has been or is being used for an enhanced oil or gas recovery project. The secretary may also make such a determination for carbon dioxide stored under this article.

(b) The storage amounts determined by the secretary under subsection (a) of this section may be used for such matters as establishing the amounts of carbon credits, allowances, trading, emissions allocations, and offsets, and for other similar purposes.

(c) The secretary may charge a reasonable fee to the person requesting a storage determination. The fee shall be set by legislative rule.

(d) Fees the secretary receives for storage determinations shall be deposited into the Carbon Dioxide Storage Facility Administrative Fund.

§22-11B-18. Subsurface pore space or container space.

(a) Title to pore space in all strata underlying the surface of lands and waters is vested in the owner of the overlying surface estate.

(b) A conveyance of title to the surface of real property conveys the pore space in all strata underlying the surface of the real property.

(c) Title to pore space may not be severed from title to the surface of the real property overlying the pore space. An instrument or arrangement that seeks to sever title to pore space from title to the surface is void and unenforceable as to the severance of the pore space from the surface interest.

(d) This article does not affect transactions before the effective date of this article, where the terms are clear and unambiguous upon the face of the instruments which severed pore space from title to the surface estate. However, there shall be a rebuttable presumption that for all transactions prior to the effective date of this article, that the pore space remains vested with the surface owner unless there was a clear and unambiguous reservation, conveyance, and/or severance of the pore space from the surface upon the face of the instruments.

(e) In the relationship between a severed mineral owner and a pore space estate, this article does not change or alter the common law, as it relates to the rights belonging to, or the dominance of, the mineral estate.

§22-11B-19. Co-tenants, ownership of pore space by multiple co-tenants and collective storage.

(a) If a storage operator does not obtain the consent of all persons who own the storage reservoir’s pore space to the construction and operation of an underground carbon dioxide storage facility, the commission may require that the pore space owned by nonconsenting owners be included in a storage facility and be subject to geologic storage.

(1) The permit applicant and prospective storage operator shall negotiate with the pore space owners and acquire rights needed to access the pore space.

(2) If, after good-faith negotiation, the applicant or operator cannot locate or cannot reach an agreement with all necessary pore space owners of a tract or parcel but has secured written consent or agreement from the owners of at least 75 percent of the interests in the pore space of the tract or parcel for the storage facility, all of the pore space of said interests for which an agreement has not been reached shall be declared to be included within the proposed storage facility if the commission finds that the requirements of this section have been met. For the purposes of this section, any unknown or unlocatable owners shall be deemed to have consented or agreed to the use of said pore space, provided that the storage operator has complied with the publication requirements of this article.

(3) Except for temporary access for seismic studies and in cases of emergency, the commission or the secretary may not allow any surface disturbance on any surface tract or tracts overlying the pore space of a non-consenting owner.

(b) Seismic study. — It is the policy of this State to allow for the exploration for geologic storage. If an operator is unable to reasonably negotiate with a surface owner for the right to conduct seismic study on lands owned by the surface owner, the secretary or the commission is authorized to issue an order for the entry onto such lands by the operator. In such instance, the operator shall notify the owner or owners 15 days prior to entry, pay the surface owner just and reasonable compensation as established by the secretary or the commission, and reasonably repair all damages to the surface and anything thereon resulting from entry. Just and reasonable compensation shall include, without limitation, compensation for all unrepairable damages to the surface and anything thereon. Any order for entry shall establish an expiration date after a reasonable duration but also allow for reauthorization as needed. The operator shall post a bond with the secretary before entry to be used as compensation to the surface owner but shall not limit the amount of compensation to be paid to the surface owner for any damages to the surface and anything thereon. Further, any such seismic study conducted by this section shall be limited to geologic storage and shall remain confidential and proprietary. The operator shall defend, indemnify, and hold harmless the property owner for all claims arising out of any entry onto the property by the operator, its contractors, and its agents, except those claims arising from the intentional acts of a property owner.

(c) Collective storage. —

(1) The storage operator shall provide a list to the commission of all persons reasonably known to own an interest in pore space proposed to be collectively used in an application to the commission for a collective storage order.

(2) If after applying the provisions of §22-11B-19(a), the applicant or operator cannot locate, reach an agreement, or receive a commission order for all necessary pore space in a storage reservoir, but has under the provisions of §22-11B-19(a), secured written consent, agreement, or a commission order for at least 75 percent of the pore space acreage in the storage reservoir, all of the pore space in the storage reservoir shall be declared to be included within the proposed storage facility if the commission finds that the requirements of this section have been met. For the purposes of this section, any unknown or unlocatable owners shall be deemed to have consented or agreed to the use of said pore space, provided that the storage operator has complied with the publication requirements of this article. A collective storage order shall be made only after the commission provides notice to all pore space owners proposed to be included within the order.

(3) The secretary shall set and collect a fee adequate to pay expenses associated with the conduct of administrative hearings for the collective storage of pore space and reimburse the commission for said expenses.

(4) If the proposed collective storage order concerns pore space with unknown or unlocatable owners, the storage operator shall publish one notice in the newspaper of the largest circulation in each county in which the pore space is located. The notice shall appear no more than 30 days prior to the initial application for the collective storage order. The applicant shall file proof of notice with the commission concurrently with the application. The notice shall:

(A) State that an application for a collective storage order has been filed with the commission;

(B) Describe the pore space proposed to be collectively used;

(C) In the case of an unknown pore space owner, indicate the name of the last known owner;

(D) In the case of a unlocatable pore space owner, identify the owner and the owner’s last known address; and

(E) State that any person claiming an interest in the pore space proposed to be collectively used should notify the commission and the storage operator at the published address within twenty (20) days of the publication date.

(5) A collective storage order shall authorize the long-term storage of carbon dioxide beneath the tract or portion thereof. The order shall also specify, where necessary, the location of carbon injection wells, outbuildings, roads, monitoring equipment, and access to them. The collective storage order shall identify the compensation to be paid to unknown, unlocatable, and nonconsenting pore space owners and the basis for valuation of the collective interest. The commission may consider evidence submitted by nonconsenting surface and nonconsenting pore space owners as to the valuation of their interest.

(6) Except for temporary access for seismic studies and in cases of emergency, the commission or the secretary shall not allow any surface disturbance on any surface tract or tracts overlying the pore space of a non-consenting owner.

(7) A certified copy of any collective storage order and a survey of the storage field shall be recorded by the operator in the office of the county clerk of the county or counties in which all or any portion of the collective tract is located. The commission shall attempt to provide a copy of the collective storage order to those required to be noticed. For purposes of this section, any unknown or unlocatable owners shall be deemed to have received notice, provided that the operator has complied with the publication requirements of subdivision (c)(3) of this section with respect to the unknown or unlocatable owners.

(8) The commission shall provide a certified copy of any collective storage order to the secretary.

§22-11B-2. Definitions.

Unless the context clearly requires a different meaning, as used in this article:

(1) “Carbon dioxide” means carbon dioxide produced by anthropogenic sources which is of such purity and quality that it will not compromise the safety of geologic storage and will not compromise those properties of a storage reservoir which allow the reservoir to effectively enclose and contain a stored gas;

(2) “Carbon dioxide sequestration” or “carbon dioxide storage” means the injection of carbon dioxide and associated constituents into subsurface geologic reservoirs intended to provide for the long-term containment of a gaseous, liquid, or supercritical carbon dioxide stream in subsurface geologic formations and thereby prevent its release into the atmosphere;

(3) “Class VI underground injection control” or “Class VI UIC” refers to the classification by the US EPA of wells for injection of substances or materials into deep rock formations and, specifically, to the class of wells that are used to inject carbon dioxide into underground rock formations to reduce carbon dioxide emissions to the atmosphere and mitigate climate change;

(4) “Class VI underground injection control permit,” “Class VI UIC permit,” or “Class VI permit” means a permit to drill injection wells and to conduct carbon dioxide sequestration at a specified site;

(5) “Commission” means the Oil and Gas Conservation Commission established pursuant to §22C-9-1 et seq. of this code.

(6) “Completion certificate” means a Certificate of Underground Carbon Dioxide Storage Project Completion;

(7) “Excursion” means the migration of carbon dioxide at or beyond the designated boundary of a carbon dioxide sequestration site;

(8) “Permit” means a Class VI underground injection control permit issued by the secretary or by the US EPA, authorizing a person or business entity to drill an injection well and to construct and operate a carbon dioxide sequestration facility;

(9) “Pore space” means a cavity or void, whether naturally or artificially created, in a subsurface stratum and is also known as container space or storage rights;

(10) “Reservoir” means a subsurface stratum, formation, aquifer, cavity, or void, whether naturally or artificially created, including oil and gas reservoirs, saline formations, and coal seams suitable for, or capable of being made suitable for, injecting and storing carbon dioxide;

(11) “Secretary” means the Secretary of the Department of Environmental Protection;

(12) “Storage facility” or “sequestration facility” means the reservoir, underground equipment, and surface facilities and equipment used or proposed to be used in a carbon dioxide sequestration project, but does not include pipelines used to transport carbon dioxide to the storage facility;

(13) “Storage operator” means a person applying for or holding a permit until the issuance of a completion certificate for the relevant storage facility;

(14) “Storage reservoir” means a reservoir proposed, authorized, or used for storing carbon dioxide;

(15) “UIC” means underground injection control;

(16) “Unknown or unlocatable owner” means a person vested with a present ownership interest in the pore space whose present identity or location cannot be determined from:

(A) A reasonable review of the records of the clerk of the county commission, the sheriff, the assessor, and the clerk of the circuit court in the county or counties in which the property is located, and includes unknown heirs, successors and assigns known to be alive;

(B) A reasonable inquiry in the vicinity of the owner’s last known place of residence;

(C) A diligent inquiry into known interest owners in the same tract; and

(D) A reasonable review of available Internet resources commonly utilized by the industry; and

(17) “US EPA” means United States Environmental Protection Agency.

§22-11B-20. Funds to be held in trust for unknown or unlocatable owners.

The storage operator shall hold all funds of unknown or unlocatable owners in trust in an interest bearing account and shall transfer said funds as unclaimed property to the State Treasurer pursuant to §36-8-1 et seq., the Uniform Unclaimed Property Act.

§22-11B-21. Judicial Review.

Any person aggrieved by a final decision of the department or the commission under this article is entitled to review of such final decision in accordance with the applicable provisions of §29A-1-1 of this code, State Administrative Procedures Act, §22-9-1 et seq. of this code, and in the Circuit Court of Kanawha County or any other county where the property is located.

§22-11B-3. Prohibition of underground carbon dioxide sequestration without a permit; injection of carbon dioxide for the purpose of enhancing the recovery of oil or other minerals not subject to the provisions of this article.

(a) It is unlawful for any person to commence work on, or to operate, a carbon dioxide sequestration facility or storage site without first securing a Class VI underground injection control permit from the secretary or from the US EPA.

(b) The injection of carbon dioxide for purposes of enhancing the recovery of oil or other minerals pursuant to a project approved by the secretary shall not be subject to the provisions of this article.

(c) If an oil, natural gas or coalbed methane well operator proposes to convert its operations to carbon dioxide sequestration, then the underground carbon dioxide sequestration facility shall be regulated pursuant to this article and §22-11-1 et seq. of this code.

(d) All applications for permits submitted after the effective date of this article shall be governed by the provisions of this article. Permits issued and applications submitted prior to the effective date of this article shall be governed by the provisions of §22-11-1 et seq. and §22-11A-1 et seq. of this code. If the holder of a Class VI underground injection control permit or other carbon dioxide sequestration permit, granted prior to the effective date of this article, seeks a modification of that permit after this article becomes effective, then the permit holder shall have the option to proceed either according to the provisions of this article or the provisions of §22-11A-1 et seq. of this code.

§22-11B-4. Permit application requirements and contents; application fee, required findings, and rulemaking.

(a) Every permit application filed under this article shall be on a form as may be prescribed by the secretary, shall be verified, and shall contain all information specified by legislative rule.

(b) Upon filing an application for a permit, an applicant shall:

(1) Pay a fee in an amount set by the secretary. The amount of the fee shall be set by rule and shall be based on the secretary’s anticipated cost of processing applications for permits, orders, or determinations under this article. The fee shall be deposited in the Carbon Dioxide Storage Facility Administrative Fund.

(2) Pay to the secretary the costs the secretary incurs in publishing notices of applications and notices for hearings on applications submitted under this article.

(c) Before a permit application may be approved, the secretary shall determine whether the proposed storage facility contains commercially valuable minerals and, if it does, a permit may be issued only if the secretary is satisfied that the interests of the mineral owners or mineral lessees will not be adversely affected or have been addressed in an written agreement entered into by the mineral owners, mineral lessees, and the storage operator;

(d) No permit shall be issued under this article unless the secretary finds:

(1) That the application and the proposed operations comply with all requirements established by the secretary, including any applicable underground injection rules, and with all applicable provisions of state and federal law;

(2) That the storage facility is suitable and feasible for carbon dioxide injection and sequestration;

(3) That the storage operator has made a good-faith effort to obtain the consent of all persons who own the storage reservoir’s pore space;

(4) That the storage operator has obtained the written consent of persons who own at least 75 percent of the storage reservoir’s pore space and have at least begun the process to obtain the remaining interests through the commission;

(5) That the proposed storage facility will not adversely affect surface waters or formations containing fresh water;

(6) That the storage facility will not unduly endanger human health or the environment;

(7) That adequate horizontal and vertical boundaries of the storage reservoir are defined, including buffer areas, to ensure that the storage facility is operated safely and prudently;

(8) That the storage operator will establish monitoring facilities and protocols to assess the location and migration of carbon dioxide injected for storage and to ensure compliance with all permit, statutory, and administrative requirements;

(9) That all nonconsenting pore space owners are or will be justly and reasonably compensated in accordance with the rules and procedures set forth in or promulgated under this article by the secretary and the commission; and

(10) That the storage facility is in the public interest.

(e) To the extent not inconsistent with state and federal regulations, the secretary shall render a decision on a permit application within one year after submission of a complete application.

(f) The secretary shall propose rules for legislative approval, pursuant to the provisions of §29A-3-1 et seq. of this code, detailing additional requirements for inclusion in a permit application, such as:

(1) Site characterization requirements;

(2) Injection well construction requirements for materials that are compatible with and can withstand contact with carbon dioxide over the life of a carbon dioxide sequestration project;

(3) Well operation requirements;

(4) Comprehensive monitoring requirements that address all aspects of well integrity, carbon dioxide injection and storage, as well as air and ground water quality during the injection operation and the post-injection site care period;

(5) Financial responsibility requirements assuring the availability of funds for the life of a carbon dioxide sequestration project (including post-injection site care and emergency response); and

(6) Reporting and recordkeeping requirements that provide project-specific information to continually evaluate the site operations and confirm environmental protection.

§22-11B-5. Public participation in permit process, notices, public hearing.

(a) Public notice of an application for a permit required under this article shall allow at least 30 days for public comment. The secretary shall specify the required contents of the public notice.

(b) The secretary shall send the public notice to the applicant, who shall be responsible for publication of a Class 1 legal advertisement of the notice by a date and in a paper specified by the secretary. Upon publication, the applicant shall send the secretary a copy of the certificate of publication. The costs of publication shall be borne by the applicant.

(c) Notice of an application for a permit shall be served to each mineral lessee, mineral owner, and pore space owner with a legal interest that involves the storage reservoir.

(d) Notice of an application for a permit shall be served to each surface owner of land overlying the storage reservoir.

(e) Notice of an application for a permit shall be served to any additional persons that the secretary requires.

(f) Service of individual notices required by this section shall be through personal service, by registered mail, or by any method of delivery that requires a receipt or signature confirmation.

(g) The secretary and/or the commission shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest of issues relevant to the draft permit. The secretary and/or the commission may also hold a public hearing at his or her discretion if a hearing may assist in clarifying one or more issues involved in the permit decision. Should a public hearing be held, notice of the hearing shall be provided in the same manner as set forth above with respect to public notice of the preparation of a draft permit.

§22-11B-6. Permit and order provisions; identification of agent.

(a) The secretary may include in any permit or order all things necessary to carry out this article’s objectives and to protect and adjust the respective rights and obligations of persons affected by a carbon dioxide sequestration facility.

(b) Every well operator required to designate an agent under this article shall, within five days after the termination of the designation, notify the secretary of the termination and designate a new agent.

§22-11B-7. Additional rulemaking authority.

In addition to the rules specified in §22-11B-4 of this code, the secretary and the commission may promulgate such emergency, interpretive, legislative, and procedural rules, pursuant to the provisions of §29A-3-1 et seq. of this code, useful or necessary to carry out the requirements of this article, including, but not limited to:

(1) The issuance of Underground Carbon Dioxide Storage Facility Completion Certificates;

(2) The administration of the Carbon Dioxide Storage Facility Administrative Fund and the Carbon Dioxide Storage Facility Trust Fund;

(3) The issuance of determinations of the amounts of carbon dioxide stored pursuant to individual underground injection control permits issued for that purpose, based upon requests for storage determination;

(4) The issuance of orders allowing for seismic studies and other steps to explore for suitable locations of carbon dioxide geologic storage; and

(5) The issuance of collective storage orders as a part of the development of a proposed carbon dioxide sequestration project.

§22-11B-8. Environmental protection, other law.

(a) For the purposes of this article and in all other respects, any carbon dioxide injected and sequestered in accordance with an underground injection control permit issued by the secretary shall not be considered a pollutant and the operation and existence of such a carbon dioxide sequestration facility shall not be considered a public nuisance.

(b) The secretary’s and the commission’s authority as set forth in this article shall not otherwise limit the authority or jurisdiction of the secretary and the commission in any manner.

§22-11B-9. Oil, natural gas and coalbed methane activities at carbon dioxide sequestration sites; extraction of sequestered carbon dioxide.

(a) Nothing in this article shall be deemed to affect the otherwise lawful right of a mineral owner to drill or bore through a carbon dioxide storage facility if done in accordance with the secretary’s underground injection control permit rules or any other applicable legal requirements which are intended to protect the carbon dioxide storage facility against the escape of carbon dioxide.

(b) Nothing in this article is intended to impede or impair the ability of an oil, natural gas, or coalbed methane operator to inject carbon dioxide through an approved enhanced oil, natural gas, or coalbed methane recovery project and to establish, verify, register, and sell emission reduction credits associated with the project.

(c) Subject to compliance with any applicable underground injection control regulations or permit, the Office of Oil and Gas shall have jurisdiction to review and approve of any subsequent extraction of sequestered carbon dioxide from a permitted underground carbon dioxide storage facility that is intended for commercial or industrial purposes.

§22-2-10. Benefits derived from substances separated by treatment of pollution from mine drainage in the waters of the state; public policy; legislative findings, intent, and purpose; severability.

(a) Public Policy. — It is the long-standing public policy of the State of West Virginia, pursuant to § 22-11-1 et seq. of this code, the Water Pollution Control Act, that the state is compelled to maintain reasonable standards of purity and quality of the waters of the state which are consistent with public health and the protection of all forms of life. It is also the long-standing public policy of this state, pursuant to § 20-2-1 et seq. of this code, that wildlife resources in this state shall be held as a public trust by the state and protected for the use and enjoyment of its citizens.

(b) Legislative Findings, Intent, and Purpose. — The Legislature finds that treatment of mine drainage reduces environmental harm by reducing toxic substances and pollution in the waters of the state. The Legislature finds that the necessary and expensive treatment of mine drainage to remove pollution from the waters of the state, and disposal of the same, may produce materials that contain valuable concentrations of rare earth elements, critical materials, and other substances which may be utilized for commercial gain. The Legislature finds that these materials found within the waters of the state are part of the water and can only be separated from the water with expensive and continuing investments of resources which may last for decades. The Legislature enacts this section with the intent of fulfilling the state’s obligations to maintain reasonable standards of purity and quality of the waters of the state, consistent with public health and the protection of all forms of life, by encouraging investments into the treatment of mine drainage.

(c) Notwithstanding any provision of this code or common law to the contrary, all chemical compounds, elements, and other potentially toxic materials which are found within the waters of this state, which are derived from the treatment of mine drainage, and which have economic value, may be used, sold, or transferred by the Department of Environmental Protection, or its designee, for commercial gain and benefit. All funds received by the department shall be deposited at the discretion of the secretary into the Special Reclamation Water Trust Fund or the Acid Mine Drainage Abatement and Treatment Fund, and used by the department to fulfill its obligations under this code: Provided, That nothing in this subsection shall be construed to interfere with any existing contract or the ability of the department to enter into an agreement with private parties with respect to the removal, sale, or transfer of said chemical compounds, elements, and other potentially toxic materials.

(d) Notwithstanding any provision of this code or common law to the contrary, all chemical compounds, elements, and other potentially toxic materials which are found within the waters of this state which are derived from the treatment of mine drainage, and which have economic value, may be used, sold, or transferred by any party, other than the department, who successfully removes said chemical compounds, elements, and other potentially toxic materials from the waters of this state for commercial gain and benefit: Provided, That nothing in this subsection shall be construed to interfere with any existing contract or the ability of parties to enter into an agreement with respect to the removal, sale, or transfer of said chemical compounds, elements, and other potentially toxic materials.

(e) The provisions of this section concerning the treatment of mine drainage are applicable to property governed by §22-2-1 et seq. of this code and §22-3-1 et seq. of this code.

(f) The provisions of this section are severable, and if any part of this section is adjudged to be unconstitutional, unenforceable, or invalid, that determination does not affect the continuing validity of the remaining provisions of this section.

§22-33-1. Short title.

This article shall be known and cited as the Geothermal Resources Act.

§22-33-10. Appeal to Environmental Quality Board.

Any person aggrieved or adversely affected by an action, decision, or order of the secretary made and entered in accordance with the provisions of this article may appeal to the Environmental Quality Board pursuant to the provisions of §22B-1-1 et seq. of this code.

§22-33-11. Judicial review.

Any person or the secretary aggrieved or affected by a final order of the Environmental Quality Board is entitled to judicial review thereof pursuant to the provisions of §29B-1-9 of this code.

§22-33-12. Rulemaking.

The secretary shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement and carry out the provisions of this article.

§22-33-2. Legislative findings; declaration of policy.

(a) The Legislature finds that:

(1) A geothermal resource is a reservoir inside the Earth from which heat can be extracted economically compared to other conventional sources of energy and used for generating electric power or any other suitable industrial, commercial, agricultural, residential, or domestic application in the future;

(2) Geothermal resources vary widely from one location to another depending on the temperature and depth of the resource; and

(3) The secretary should have broad authority to develop a regulatory program for geothermal resources to meet the economic needs of the state and to protect the public interest.

(b) The Legislature declares that the establishment of a new regulatory program to address the exploration, development, and production of geothermal resources in this state is in the public interest and should be done in a manner that protects the environment and our economy for current and future generations.

§22-33-3. Applicability; exceptions.

The provisions of this article shall apply to geothermal resources at temperatures and volumetric flow rates established by the secretary by legislative rule: Provided, That this article shall not apply to geothermal heating and cooling heat pump systems for private residential dwellings and farm buildings and any geothermal system regulated pursuant to section 10 of the Bureau of Public Heath legislative rule for Water Well Design Standards, 64 CSR 46 or any horizontal system with a depth of less than 30 feet.

§22-33-4. Ownership of geothermal resources.

(a) Ownership of any geothermal resource is vested in the owner of the surface property overlying the geothermal resource unless severance of the geothermal resource is clear and unambiguous in an instrument conveying or reserving ownership of the geothermal resource.

(b) No mineral or water estate shall be construed to include any geothermal resource unless clearly and unambiguously included in an instrument reserving or conveying the geothermal resource.

(c) Nothing in this article shall divest any person or the state of any right, title, or interest they might have in any geothermal resource.

(d) Nothing in this article may be construed as vesting in the secretary the jurisdiction to adjudicate property rights disputes.

§22-33-5. Definitions.

As used in this article:

(a) “Correlative right” means the right of each geothermal owner in a geothermal system to produce without waste his or her just and equitable share of the geothermal resource in the geothermal system.

(b) “Geothermal energy” means the usable energy that is produced or that can be produced from a geothermal resource.

(c) “Geothermal resource” means the natural heat of the earth and the energy, in whatever form, that is present in, associated with, or created by, or that may be extracted from, such natural heat, as determined by the secretary by legislative rule.

(d) “Geothermal system” means any aquifer, pool, reservoir, or other geologic formation containing geothermal resources.

(e) “Secretary” means the Secretary of the Department of Environmental Protection or his or her designee as provided in article one of this chapter.

§22-33-6. Geothermal resources permit required.

It is unlawful for any person to commence any work relating to the exploration, development, or production of geothermal resources without first obtaining a well permit from the secretary pursuant to this article.

§22-33-7. Jurisdiction of the secretary; powers and duties; geothermal resources regulatory program.

(a) The secretary is vested with jurisdiction over all aspects of this article and has the exclusive authority to perform all acts necessary to implement this article.

(b) The secretary shall develop a regulatory program for the exploration, development, and production of geothermal resources in this state. The regulatory program promulgated by the secretary shall include, but not be limited to, the following:

(1) Application for a permit on a form prescribed by the secretary and containing any information the secretary considers is necessary to issue a decision on the permit application;

(2) A procedure for reviewing a permit application and issuance of decision to grant or deny a permit;

(3) A procedure allowing the public to comment on a permit application prior to issuance of a decision by the secretary;

(4) A permit term not to exceed five years;

(5) A procedure to renew or modify permits on forms prescribed by the secretary and containing any information the secretary considers is necessary to issue a decision on the renewal or modification;

(6) Fees for permit applications and for permit renewals and modifications;

(7) A procedure to suspend or revoke permits;

(8) Standards for developing, drilling, plugging, and reclaiming well sites;

(9) Guidelines for the safe disposal of spent geothermal fluids and other unusable or contaminated fluids generated in the production of geothermal resources;

(10) Standards to ensure protection of all water resources of this state; and

(11) Inspections and investigations to ensure compliance with any provision in this article or rule or permit or order issued by the secretary.

§22-33-8. Civil penalties.

Any person who knowingly violates any provision of this article or rule promulgated hereunder or order or permit issued pursuant to this article is a liable for a civil penalty of not less than $100 nor more than $500 for each violation.

§22-33-9. Administrative orders; injunctive relief.

(a) When the secretary determines, on the basis of any information, that a person is in violation of any requirement of this article or rule promulgated thereunder, the secretary may issue an order stating with reasonable specificity the nature of the violation and requiring compliance within a reasonable specified time period, or the secretary may commence a civil action in the circuit court of the county in which the violation occurred or in the circuit court of Kanawha County for appropriate relief, including a temporary or permanent injunction. The secretary or the Environmental Quality Board may stay any order issued by the secretary until the order is reviewed by the Environmental Quality Board.

(b) In addition to the powers and authority granted to the secretary by this chapter to enter into consent agreements, settlements, and otherwise enforce this chapter, the secretary shall propose a rule for legislative approval to establish a mechanism for the administrative resolution of violations set forth in this article through consent order or agreement as an alternative to instituting a civil action.

§22-34-1. Short title.

This article shall be known as, and may be cited as, the West Virginia Department of Environmental Protection Design-Build Pilot Program.

§22-34-2. West Virginia Department of Environmental Protection Design-Build Program.

(a) Notwithstanding any provision of this code to the contrary, the secretary of the West Virginia Department of Environmental Protection may expedite the construction of projects by combining the design and construction elements of a project into a single contract as provided in this article.

(b) The secretary shall promulgate procedural rules as the secretary deems to be useful or necessary to carry out the purpose of this article and to implement the intent of the Legislature in accordance with the provisions of §29A-3-1 et seq. of this code, which must provide at a minimum:

(1) The application process for approval of a design-build project;

(2) The procedure for selecting the most qualified design-builders prior to the release of the invitation for proposals;

(3) The procedure for the preparation and contents of invitations for proposals;

(4) The procedure for preparing and submitting proposals;

(5) The procedure for evaluating proposals;

(6) The procedure for negotiations between the agency and those submitting proposals prior to the acceptance of a proposal, if any such negotiations are contemplated;

(7) The procedure for awarding and executing design-build contracts; and

(8) The procedure for acting on formal protests relating to the solicitation or award of design-build contracts.

(c) A design-build project may be let to contract only in accordance with the secretary's procedural rules promulgated pursuant to the provisions of this article: Provided, That only contracts awarded directly by the Department of Environmental Protection may utilize the design-build delivery method authorized pursuant to the provisions of this article: Provided, however, design-build delivery projects awarded pursuant to the provisions of this article may not exceed a total aggregate value of $50 million.

§22-34-3. Invitation for bids.

(a) The West Virginia Department of Environmental Protection shall prepare an invitation for bids for prequalified design-builders, which must provide at a minimum:

(1) The procedure to be followed for submitting bids and making awards;

(2) The proposed general terms and conditions for the design-build contract;

(3) The description of the drawings, specifications, or other information to be submitted with the bid, with guidance as to form and level of completeness of the drawings, specifications, or submittals that will be acceptable;

(4) A proposed time schedule for commencement and completion of the design-build contract;

(5) Budget limits for the design-build contract, if any;

(6) Requirements or restrictions for subletting specific portions of the design-build contract, if any; and

(7) Requirements for performance bonds, payment bonds, insurance, professional liability insurance, and workers' compensation coverage.

(b) The West Virginia Department of Environmental Protection shall set forth its needs with sufficient clarity to ensure there is comprehensive understanding of the project's scope and requirements.

§22-34-4. Acceptance of design-build bid.

(a) The design-builder shall submit the bid to the West Virginia Department of Environmental Protection as required in the invitation for bids.

(b) The design-builder shall furnish a bid bond not to exceed five percent of the maximum cost of the design-build contract.

(c) The secretary may choose to reject all bids. If the secretary chooses to accept a bid, he or she shall award the project to the qualified design-builder based on a value-based selection process combining technical qualifications and competitive bidding elements. The secretary shall ascertain that the submissions comply with the requirements of this article and the policies and procedures of the secretary.

§22-34-5. Report to the Legislature; sunset date.

(a) On or before January 15, 2024, and annually thereafter, the secretary shall prepare and submit to the Joint Committee on Government and Finance a written report, which may be transmitted electronically, evaluating the experience of the West Virginia Department of Environmental Protection with each design-built project completed pursuant to the provisions of this article during the prior calendar year, including whether the department realized any cost or time savings, the number and cost of change orders, the quality of work performed, the number of bids received, and other issues the secretary considers appropriate.

(b) The provisions of this article expire and shall have no force and effect after December 31, 2025.

§22-3-39. Benefits derived from substances separated by treatment of pollution from mine drainage in the waters of the state; applicability.

The provisions of §22-2-10 of this code concerning the treatment of mine drainage are applicable to property governed by §22-3-1 et seq. of this code.

§22-5-11b. Construction and operating permits required for natural gas electric generation facilities as stationary sources of air pollutants.

(a) This section applies to natural gas electric generation facilities as identified and communicated to the secretary by the Secretary of the Department of Economic Development as sites that may be suitable for one or more natural gas electric generation facilities in accordance with §5B-2N-1 et seq. of this code, or as identified by an applicant for a construction and operating permit for one or more natural gas electric generation facilities.

(b) The secretary shall take all reasonable steps to expedite consideration of permit applications utilizing sites designated by the Secretary of the Department of Economic Development as a site suitable for use as a natural gas electric generation facility and communicated to the secretary in accordance with §5B-2N-1 et seq. of this code. Such steps shall include:

(1) An initial determination of whether the identified site is in compliance with national ambient air quality standards and the West Virginia State Implementation Plan; and

(2) Evaluation of whether there is sufficient data, meteorological and otherwise, that would allow acceptable modeling of the impacts of emissions from a natural gas electric generation facility, and if not, inform the Department of Economic Development where to initiate construction of sampling and measuring devices to acquire such data at the site.

(c) Unless otherwise specifically provided in this article, the secretary shall act on a permit for a natural gas electric generation facility which is determined to be a major stationary source within a reasonable time, not to exceed 270 calendar days, and for a minor stationary source, 90 days, after the secretary determines that the application is complete. The secretary must determine whether an application is complete within 30 days from the date the permit application is filed with the secretary and communicated to the permit applicant.

§22-36-1. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(1) "Authority" means the Water Development Authority provided for in §22C-1-4 of this code.

(2) "Capacity development" means the technical, managerial, and financial capability of a public water system.

(3) "Cost" means the cost of all labor, materials, machinery, equipment, lands, property, rights and easements, plans and specifications, and all other expenses necessary or incident to the acquisition, construction, improvement, expansion, extension, repair, or rehabilitation of all or part of a project.

(4) "Disadvantaged community" means the service area of a public water system that meets affordability criteria established after public review and comment by the state.

(5) "Federal Safe Drinking Water Act" means the federal statute commonly known as the Safe Drinking Water Act, 42 U.S.C. 300f et seq., as enacted, amended, and as may be subsequently amended.

(6) "Fund" means the West Virginia Drinking Water Treatment Revolving Fund created in this article.

(7) "Instrumentality" means the Department of Environmental Protection which has the primary responsibility for administering the fund and this article pursuant to requirements of the federal Safe Drinking Water Act.

(8) "Local entity" means any municipality, public utility, or person, including any individual, firm, partnership, association, not-for-profit corporation, or other corporation organized and existing under the laws of the state which may construct and operate an eligible project.

(9) "Public water system" means that term as defined in §16-1-9a of this code.

(10) "Project" means a project for improving a drinking water system for the purpose of achieving or maintaining compliance with applicable state and federal drinking water regulations.

(11) "Set-aside accounts" means those accounts that shall be set up for activities required by the federal Safe Drinking Water Act. The moneys for these accounts may be taken from the federal capitalization grant for these non-project activities before the capitalization grant is deposited into the fund.

(12) "Small system" means a public water system serving 10,000 or fewer persons.

§22-36-2. Designation of Department of Environmental Protection as state instrumentality; rules; small systems; disadvantaged communities.

(a) The Department of Environmental Protection shall act as the instrumentality that is hereby empowered to enter into capitalization agreements with the United States Environmental Protection Agency, to accept capitalization grant awards made under the federal Safe Drinking Water Act, and to direct the administration and management of the West Virginia Drinking Water Treatment Revolving Fund created in this article in accordance with the requirements of federal law.

(b) The Department of Environmental Protection shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code for the purpose of effecting the administration of the provisions of this article. The rules shall include, but are not limited to, establishing requirements for: (1) Capacity development; (2) environmental review; (3) disadvantaged community designation; (4) receipt and disbursement of fund moneys; and (5) establishment of a Drinking Water Treatment Revolving Fund program to direct the financial management of the fund to water systems and establish the interest rates and repayment terms of the loans.

(c) Two percent of the annual federal capitalization grants made to this state shall be utilized to provide technical assistance services for small systems to assist those systems in maintaining compliance with the federal Safe Drinking Water Act. The Department of Environmental Protection shall enter into contracts to provide technical assistance services for small systems with such non-profit organizations that: (1) Have a membership that represents at least 25 percent of the small systems of this state; and (2) have at least five years’ experience in providing on-site technical assistance to small systems.

(d) The Department of Environmental Protection shall, in accordance with the provisions of the federal Safe Drinking Water Act, establish a program for loan subsidies to disadvantaged communities. Thirty percent of the annual federal capitalization grants made to this state shall be dedicated to the funding of projects for disadvantaged communities.

§22-36-3. West Virginia Drinking Water Treatment Revolving Fund; duties of Department of Environmental Protection and Water Development Authority; set-aside accounts.

(a) There is continued in the office of the State Treasurer a permanent and perpetual special fund to be known as the West Virginia Drinking Water Treatment Revolving Fund. The fund shall be administered and managed in accordance with the provisions of the federal Safe Drinking Water Act by the Department of Environmental Protection. The Department of Environmental Protection may draw all or a portion of those moneys available under capitalization agreements, and with the capitalization grant awards from the United States Environmental Protection Agency under the federal Safe Drinking Water Act, and deposit such moneys into the fund and the set-aside accounts.

(b) The fund, less the set-aside account moneys, shall be administered and managed by the Water Development Authority under the direction of the Department of Environmental Protection. The fund shall be comprised of moneys appropriated to the fund by the Legislature, moneys allocated to the state by the federal government expressly for the purpose of establishing and maintaining a drinking water treatment revolving fund and set-aside accounts, all receipts from loans made from the fund, all income from the investment of moneys held in the fund, and all other sums designated for deposits to the fund from any source, public or private. Moneys in the fund shall be used solely to make loans or provide other allowable financial assistance to eligible projects for public water systems, as described in the federal Safe Drinking Water Act.

(c) In order to carry out the administration and management of the fund, the authority and the Department of Environmental Protection are authorized to employ officers, employees, agents, advisors, and consultants, including attorneys, financial advisors, engineers, other technical advisors, and public accountants, and notwithstanding any provisions of this code to the contrary, to determine their duties and compensation without the approval of any other agency or instrumentality.

(d) The authority shall propose legislative rules for promulgation in accordance with the provisions of §29A-3-1 et seq. of this code to govern the pledge of loans to secure bonds of the authority.

(e) Disbursements from the fund shall be authorized for payment by the director of the authority or the director’s designee. Moneys in the fund shall not be commingled with other money of the authority. If not needed for immediate use or disbursement, moneys in the fund may be invested or reinvested by the authority in obligations or securities which are considered lawful investments for public funds under this code.

(f) Pursuant to the provisions of the federal Safe Drinking Water Act, set-aside accounts shall be set up in accounts separate from the West Virginia Drinking Water Treatment Revolving Fund. These set-aside accounts shall include, but not be limited to, administration costs, source water protection, operator training and certification, technical assistance to systems, local assistance, and other state activities permitted by the federal Safe Drinking Water Act. The Department of Environmental Protection shall establish and administer the set-aside accounts as permitted by the federal Safe Drinking Water Act. An application fee may be charged and deposited into the administrative account to defray the cost of administering the program.

§22-36-4. Management of funds.

The authority shall manage the funds received pursuant to the provisions of this article for accounting purposes. The authority shall cause an audit of its books and accounts to be made at least once each fiscal year and the costs thereof may be defrayed as administrative expenses under the provisions of this article. The audit shall be conducted by a certified public accountant and provide an auditor’s opinion on the fund’s financial statements, a report on the internal controls, and a report prepared in compliance with the provisions of the West Virginia Drinking Water Treatment Revolving Fund.

§22-36-5. Remedies to enforce payment.

(a) In order to ensure the timely payment of all sums due and owing to the fund under a revolving fund loan agreement made between the state and a local entity, and notwithstanding any provisions of this code to the contrary, the authority has and may, at its option, exercise the following rights and remedies in the event of any default by a local entity under a loan agreement:

(1) The authority may directly impose, in its own name and for its own benefit, service charges upon all users of a project funded by a loan distributed to a local entity pursuant to this article, and may proceed directly to enforce and collect the service charges, together with all necessary costs of the enforcement and collection.

(2) The authority may exercise, in its own name or in the name of, and as the agent for, a particular local entity, all of the rights, powers, and remedies of the local entity with respect to the project or which may be conferred upon the local entity by statute, rule, regulation, or judicial decision, including all rights and remedies with respect to users of the project funded by the loan distributed to that local entity pursuant to this article.

(3) The authority may, by civil action, mandamus, or other judicial or administrative proceeding, compel performance by a local entity of all the terms and conditions of the loan agreement between the state and that local entity including:

(A) The adjustment of service charges as required to repay the loan or otherwise satisfy the terms of the loan agreement;

(B) The enforcement and collection of service charges; and

(C) The enforcement by the local entity of all rights and remedies conferred by statute, rule, regulation, or judicial decision.

(b) The rights and remedies enumerated in this article are in addition to rights and remedies conferred upon the authority by law or pursuant to the loan agreement.

§22-36-6. Construction of article.

The provisions of this article shall be liberally construed to the end that its beneficial purposes may be affected. Insofar as the provisions of this article are inconsistent with the provisions of any other general, special, or local law, the provisions of this article are controlling.

§22-36-7. Environmental review of funded projects.

(a) The Department of Environmental Protection shall conduct an environmental review on each project funded under this article. The Secretary of the Department of Environmental Protection shall promulgate legislative rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the environmental review of funded projects: Provided, That the rules shall be consistent with the regulations promulgated by the United States Environmental Protection Agency pursuant to the federal Safe Drinking Water Act, 42 U.S.C. § 300f through § 300j-27, inclusive, as amended.

(b) The Secretary of the Department of Environmental Protection is authorized to direct a local entity, or its agent, to implement all measures that, in the judgment of the secretary, are necessary in order to mitigate or prevent adverse impacts to the public health, safety, or welfare or to the environment that may result from a project funded under this article. The secretary is further authorized to require all projects to comply with all other appropriate federal laws and regulations that are required of the projects under the Federal Safe Drinking Water Act, 42 U.S.C. § 300f through § 300j-27, inclusive, as amended.

§22-11C-1. Legislative Findings.

(a) Legislative findings. — (1) The Legislature recognizes the prevalence of perfluoroalkyl and polyfluoroalkyl substances, which the United States Environmental Protection Agency (USEPA) has classified as contaminants. These chemicals are used in thousands of applications throughout the industrial, food, automotive, aerospace, electronic, oil and gas, green energy, and textile industries. They are used in some fire-fighting foams, food packaging, cleaning products, semiconductors, computers, cellular phones, electric vehicle batteries, automobiles, pharmaceuticals, agricultural pesticides, oil and gas development, defense equipment, hydrogen production, and various other household items. Many are very stable, some accumulate in the environment, and many are highly water soluble, easily transferring through soil to groundwater.

(2) During the 2020 regular session, the West Virginia Legislature passed Senate Concurrent Resolution 46 (SCR 46), which requested that the Department of Environmental Protection (DEP) and the Department of Health and Human Resources cooperatively propose and initiate a public source-water supply study plan to sample PFAS substances for all community water systems in West Virginia, including schools and daycares that operate treatment systems regulated by the West Virginia Department of Health and Human Resources.

(3) In compliance with SCR 46, the DEP and the Department of Health and Human Resources contracted with the United States Geological Survey to conduct the PFAS study. The USGS study was completed in 2022, with results for 279 sampled sites.

(4) According to the USGS study, PFOA and/or PFOS was detected above the then-current USEPA drinking water health advisory in 13% (37) of the sampled raw water sources between 2019 and 2021.

(5) In June 2022, the USEPA issued updated interim or final drinking water health advisories for four PFAS: perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorobutane sulfonic acid and its potassium salt (PFBS), and hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA).

(6) According to the data collected for the USGS study, PFOA and/or PFOS was detected above the June 2022 drinking water health advisories in 49% (137) of the sampled raw water sources (involving 130 public water systems) between 2019 and 2021.

(7) In August 2022, the USEPA proposed to designate PFOA and PFOS as hazardous substances because, when released into the environment, these chemicals present substantial danger to public health.

(8) On December 5, 2022, the USEPA issued guidance to state permitting authorities entitled “Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs.”

(9) The USEPA has committed to establishing drinking water standards under the Safe Drinking Water Act for PFOA and PFOS in 2023.

(10) The USEPA has committed to publishing recommended human health water quality criteria under the Clean Water Act for PFOA and PFOS in 2024.

(11) While some manufacturers have already voluntarily done so, it is imperative to identify the remaining sources of PFAS detected in the raw water sources for public water systems so that these sources of pollution can be properly addressed, minimizing the impacts to public drinking water systems. Identifying and addressing PFAS sources will also benefit people who rely on impacted private drinking water wells.

(12) It is in the public interest for West Virginia to reduce toxic chemicals in drinking water supplies to protect the health of West Virginians and strengthen the state’s economy.

§22-11C-2. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(1) “Perfluoroalkyl and polyfluoroalkyl substances” or “PFAS” means non-polymeric perfluoroalkyl and polyfluoroalkyl substances that contain at least two fully fluorinated carbon atoms, excluding gases and volatile liquids. PFAS includes, among other substances, PFOA and PFOS.

(2) “Secretary” means the Secretary of the Department of Environmental Protection.

(3) “USGS study” means United States Geological Survey Scientific Investigations Report 2022-5067, entitled “Occurrence of Per- and Polyfluoroalkyl Substances and Inorganic Analytes in Groundwater and Surface Water Used as Sources for Public Water Supplies in West Virginia,” published in 2022.

(4) “Publicly Owned Treatment Works” means any treatment works owned by the state or any political subdivision thereof, any municipality or any other public entity, for the treatment of pollutants as well as any such treatment works that were subsequently conveyed to a private entity which delivers wastewater treatment services under the regulation of the Public Service Commission of West Virginia.

§22-11C-3. Identification of PFAS sources where PFAS has been detected in raw water sources for public drinking water systems.

(a) To identify and address sources of PFAS in raw water sources of public drinking water systems, DEP shall:

(1) Write a PFAS action plan to identify and address sources of PFAS by July 1, 2024, for each of the 37 raw water sources for which the USGS study has measured PFOA, PFOS, PFBS, or HFPO-DA above the practical quantitation limit and above USEPA’s applicable drinking water human health advisory;

(2) For each raw water source for which the USGS study has measured PFOA, PFOS, PFBS, or HFPO-DA above the method detection level, above USEPA’s applicable drinking water human health advisory, and below the practical quantitation limit, DEP shall initiate a study to sample the finished water of the associated public water system, after treatment, by December 31, 2023;

(3) For each public water system for which the measured PFOA, PFOS, PFBS, or HFPO-DA in the finished water is above the method detection level and above USEPA’s applicable drinking water human health advisory, whether or not the measured value is above or below the practical quantitation limit, DEP shall write a PFAS action plan to identify and address sources of PFAS for the public water system’s raw water source or sources. The first 50 such plans shall be completed by December 31, 2025, and the remaining plans shall be completed by December 31, 2026;

(4) For each public water system for which a PFAS action plan is required under this section, DEP shall provide information to the public water system regarding PFAS raw water and finished water sampling results, DEP’s schedule for developing any required PFAS action plan, a summary of results from any completed PFAS action plan, information about how to obtain any completed PFAS action plan, and contact information for an appropriate person or office at DEP to which questions can be directed. Public water systems are subject to the Fifth Unregulated Contaminate Monitoring Rule (UCMR), 40 C.F.R. part 141, which are also subject to the Consumer Confidence Report (CCR) and the Public Notification (PN) rules under the Safe Drinking Water Act, 42 U.S.C. 300f et seq., as enacted, amended, and as may be subsequently amended, to which the public water systems are required to notify their customers of available UCMR results and report UCMR results in their annual Consumer Confidence Report (CCR) when unregulated contaminants, including PFAS, are detected;

(5) Recommend any necessary changes to West Virginia statutes or administrative rules to address the sources of PFAS chemicals; and

(6) Report annually on its activities to the Joint Legislative Oversight Commission on State Water Resources.

(7) In developing PFAS action plans, consult with other applicable units of state government, organizations representing West Virginia public drinking water systems, West Virginia public drinking water systems, and other relevant entities with knowledge related to identifying and addressing PFAS sources.

(b) The PFAS action plans, to the extent that data are available, shall identify the source or sources of PFAS in the raw water source, and regulatory and non-regulatory options for addressing each identified source of PFAS and minimizing the impacts on public water systems.

(c) The PFAS action plans and associated studies herein required do not change the duty or drinking water standard requirements of public water systems.

§22-11C-4. Self-reporting of PFAS manufacture and use, monitoring of PFAS discharges, and establishment of PFAS water quality criteria.

(a) No later than December 31, 2023, all facilities that discharge to a surface water under a West Virginia/National Pollutant Discharge Elimination System permit or that discharge to a Publicly Owned Treatment Works under an industrial pretreatment program, including but not limited to chemical and manufacturing facilities, which manufacture or knowingly use or have used one or more of the following PFAS chemicals in their production process since January 1, 2017, must report the use of these chemicals to the DEP:

(1) Any PFAS chemical found in any public water system’s raw water source in the USGS study; and

(2) Any additional PFAS chemicals that the secretary determines are harmful to human health and that he or she reasonably believes to be present in West Virginia waters at levels that can be detected using USEPA-approved methods: Provided, That if USEPA-approved methods are not yet available, USEPA-recommended methods may be used. If two or more methods have been approved by USEPA, monitoring shall use the method with the lowest detection level.

(b) This reporting shall include the chemical name, the Chemical Abstracts Service (CAS) number, the amount used in each year from 2017 through 2022, and any additional information required by the secretary to ascertain sources of PFAS chemicals in West Virginia, and shall be provided in a manner and form prescribed by the secretary.

(c) For every facility that reports the use of one or more PFAS chemicals in accordance with subsection (a) of this section, and that discharges to a Publicly Owned Treatment Works, the secretary shall forward the information provided by the facility to the Publicly Owned Treatment Works within 30 days of receipt. This reporting requirement does not change the duty or discharge permits of a Publicly Owned Treatment Works.

(d) For every facility that reports the use of one or more PFAS chemicals in accordance with subsection (a) of this section, at least quarterly monitoring of the self-reported PFAS chemicals shall be required within six months of notification by the facility: Provided, That the secretary may alter the monitoring frequency if monitoring results are below the method detection level for four consecutive samples, or if monitoring results show consistent results and the source or sources of the PFAS detected in the samples have been conclusively determined. This monitoring shall be implemented as follows:

(1) If the facility discharges to a surface water under a West Virginia/National Pollutant Discharge Elimination System permit, the secretary shall modify the facility’s West Virginia/National Pollutant Discharge Elimination System permit to require monitoring.

(2) If the facility discharges to a Publicly Owned Treatment Works under an industrial pretreatment program and the permit holder for the Publicly Owned Treatment Works has pretreatment authority, the permit holder for the Publicly Owned Treatment Works shall modify the pretreatment permit held by the facility that reports the use of one or more PFAS chemicals to require monitoring.

(3) If the facility discharges to a Publicly Owned Treatment Works under an industrial pretreatment program and the department has pretreatment authority, the secretary shall modify the pretreatment permit held by the facility that reports the use of one or more PFAS chemicals to require monitoring.

(e) Monitoring shall use laboratory and sampling methods approved by the USEPA: Provided, That if USEPA-approved methods are not yet available, USEPA-recommended methods may be used. If two or more approved methods are available, monitoring shall use the method with the lowest detection level.

(f) For every facility that reports the use of one or more PFAS chemicals in accordance with subsection (a) of this section, the secretary shall modify the facility’s West Virginia/National Pollutant Discharge Elimination System permit as directed by the federal Clean Water Act and State Water Pollution Control Act, after consultation with relevant USEPA guidance.

(g) After the USEPA establishes final water quality criteria under the Clean Water Act for any PFAS, DEP shall propose adopting appropriate criteria by rule, which criteria may be no more stringent than the criteria established by USEPA, as part of the next regular legislative rulemaking cycle in accordance with §29A-3-1 et seq of this code.

§22-5-11c. Construction and operating permits required for coal electric generation facilities as stationary sources of air pollutants.

(a) This section applies to coal electric generation facilities as identified and communicated to the Secretary by the West Virginia Department of Economic Development as sites that may be suitable for one or more coal electric generation facilities in accordance with §5B-2O-1 et seq. of this code, or as identified by an applicant for a construction and operating permit for one or more coal electric generation facilities.

(b) The secretary shall take all reasonable steps to expedite consideration of permit applications utilizing sites designated by the Department of Economic Development as a site suitable for use as a coal electric generation facility and communicated to the secretary in accordance with §5B-2O-1 et seq. of this code. Such steps shall include:

(1) An initial determination of whether the identified site is in compliance with National Ambient Air Quality Standards and the West Virginia State Implementation Plan, whether emissions from a coal electric generation facility would be likely to interfere with compliance with the same and, if interference is likely, the steps necessary to avoid noncompliance with National Ambient Air Quality Standards and the State Implementation Plan; and

(2) Evaluation of whether there is sufficient data, meteorological and otherwise, that would allow acceptable modeling of the impacts of emissions from a coal electric generation facility, and if not, construction of sampling and measuring devices to acquire such data at the site.

(c) Unless otherwise specifically provided in this article, the secretary shall issue a permit for a coal electric generation facility which is determined to be a major stationary source within a reasonable time, not to exceed 270 calendar days, after the secretary determines that the application is complete. The secretary must determine whether an application is complete within 30 days from the date the permit application is filed with the secretary and communicated to the permit applicant.